Decisions Round-Up: 18 to 22 March 2013

 We published six decisions this week.

Key messages:

Context and content of information may influence whether it is "held" for the purposes of FOISA

When deciding whether you hold information for the purposes of FOISA, consider both the content of the information, and the context in which you hold it.  In Decision 042/2013, it was necessary to decide whether a University academic was acting as an employee or an individual academic.  We decided that he was acting in his capacity as an employee (context), so the information was held by the University in its own right. The content also helped us determine that the academic was acting as an employee, rather than independently.

To be "held" means information must exist in recorded form, not be inferred from other information

Just because you can use information which you do hold to make deductions or inferences about other information, does not mean that the other information is "held" for the purposes of FOISA.  In Decision 043/2013, Ministers were able to use the absence of information which had been held, to infer that it had been deleted.  But the information itself, being absent, was not "held".

Provide specific and case related arguments to justify applying exemptions

This is a recurring theme in the Decisions Round-up.  Often, authorities provide arguments in favour of applying exemptions without demonstrating the specific link to the information in their particular case.  In Decision 044/2013, the Commissioner sets out what she will expect from authorities in cases relating to private finance initiative (PFI) financial models.  The onus is on you to satisfy the Commissioner that concerns about the level of harm likely to occur to your authority are justified - she will expect full and case specific arguments in the first instance.  Without these arguments, she may contact third parties directly, or simply order disclosure on the grounds that your submissions were insufficient.

Exemptions should only be applied to information which should be withheld

Often, an applicant will request a range of information, some of which is suitable for disclosure, and some of which might be withheld legitimately.  In these circumstances, do not be tempted to apply a "blanket" exemption to all the information ? consider what you can release, and give it to the applicant, withholding only the information which is exempt.  If the case is appealed to us, you will have to justify your decision to the Commissioner in relation to all of the information.  If we find that some of the information cannot be withheld, you will have release the information to the applicant anyway.  It's much quicker, where you can, to simply provide it in the first place.

Answer the question

If you don't hold the information that's been asked for, you must tell the applicant.  While it's good practice to supply related information to provide context, this can cause confusion if you don't make it clear that you don't hold the information which the applicant asked for.


Summary of decisions:

Decision 042/2013 - Mr Martin Ackroyd and University of St Andrews

Mr Ackroyd asked the University for emails which were sent to a senior employee, after the employee engaged in a blog debate about a seminar he had chaired at the University.  The University claimed it did not hold the emails for the purposes of FOISA, because it held them on the employee's behalf, i.e. they were part of a discourse he had taken part in as an independent academic rather than as an employee.  The University claimed that even if they were held, their release would inhibit the free and frank exchange of views for the purposes of deliberation.  We found that the employee had contributed to the blog in his capacity as the seminar chair (i.e. in his role as a University employee), and that the content did not amount to academic discourse.  The Commissioner also found the University's arguments about the harm of release were hypothetical, and did not suggest substantial harm was a real or imminent possibility.

Decision 043/2013 - Global Alliance Against Industrial Aquaculture (GAAIA) and Scottish Ministers

Ministers initially informed GAAIA that they held no information on the deletion of sea lice data.  When asked to review this, they said they might hold some information - where a reference to data was reported in a case file but that data no longer existed, Ministers could infer from this that data had been deleted.  They told GAAIA, however, that it would be manifestly unreasonable, under the EIRs, to carry out the necessary analysis of all case files.  When GAAIA appealed, the Commissioner found that they had been correct, in their first response, to conclude that they didn't hold any recorded information.

Decision 044/2013 - Jim and Margaret Cuthbert and Forth Valley NHS Board (the Board)

Mr and Mrs Cuthbert asked the Board for the Financial Model of the Forth Valley Royal Hospital private finance initiative (PFI) contract.  After the Board refused on the grounds of confidentiality, the Cuthberts appealed to the Commissioner.  Initial arguments put forward by the Board were both general and sparse.  However, as they provided more thorough submissions (relating the exemption directly to the information in question during the investigation), the Commissioner upheld the Board's decision in part.  Some of the information could be withheld, but some was also suitable for disclosure to Mr and Mrs Cuthbert.

Decision 045/2013 - Mr Q and Scottish Prison Service (SPS)

Mr Q asked the SPS for information about the Good Lives (Sex Offender) programme.  The SPS withheld some information, and informed Mr Q that it did not hold the rest.  When Mr Q appealed to us, the Commissioner found that some forms and guidance would normally be disclosed to any participant in the programme, and should have been provided.  However, she accepted that releasing much of the other withheld information would prejudice the effective conduct of public affairs (that is, it would harm the authority's ability to do its job).  It is in the public interest to prevent this information going into the public domain to stop sex offenders using it to learn how to skew their answers to get a lower risk rating.

Decision 046/2013 - Mr and Mrs Ian and Lesley Blake and Scottish Legal Complaints Commission (SLCC)

Mr and Mrs Blake asked the SLCC for correspondence and papers it held on a specific complaint.  The SLCC withheld some information which it believed was exempt under s26(a).  This exemption essentially states that information cannot be released under FOISA if it is prohibited from release by another law.  In this case, the SLCC argued that certain provisions in the Legal Profession and Legal Aid (Scotland) Act 2007 expressly prevented them from releasing the information.  The Commissioner accepted this.  This exemption is "absolute" - which means that, if the exemption applies, there's no need to go on to look at whether there is any public interest in releasing it anyway.

Decision 048/2013 - Peter Cherbi and Scottish Ministers

Mr Cherbi asked the Ministers to inform him how many members of staff and consultants they had paid via limited companies in the last two years.  When Ministers didn't respond, Mr Cherbi requested a review - and was provided with some information.  During the investigation, the Commissioner found that, while Ministers had provided some related information, they had not addressed the specific terms of Mr Cherbi's request.  As a result, their response was ambiguous and did not offer sufficient explanation for why they were not providing Mr Cherbi with what he had asked for.  Nevertheless, she accepted that they did not hold any more of the information Mr Cherbi was looking for.

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