Decisions Round-up: 18 to 29 September 2017

At what point does an FOI request become vexatious? This week we have advice on requests which have the effect of harassing an authority's staff - whether intentional or not. We also have important reminders that advice should be provided if information refused using an "otherwise accessible" provision, and that every EIR exception is subject to a public interest test.

Learning points:

  • Vexatious requests - assessing harassment
    Decision 152/2017 considers whether a request was vexatious, on the grounds that it harassed the public authority. The requester argued that the request was intended to hold the authority to account, not harass it. However, our guidance sets out that the test is whether the request has the effect of harassing the authority, not whether it was intended to do so. In other words, the key factor is the extent to which a request is likely to cause a disproportionate or unjustified level of disruption, irritation or stress.

    Public employees should always be held accountable, but staff should also be treated fairly. In this case, after considering the persistence with which the requester had pursued his complaint, we found that the request was disproportionate and had the effect of harassing the authority and its staff.


  • Thorough searches will save time (and pain) later on
    We regularly see cases where the public authority finds relevant information only after we start investigating. In Decisions 151/2017 and 156/2017 the information was disclosed during our investigation. If adequate searches had been carried out when responding to these requests, decisions going against the public authorities may have been avoided.


  • Timescales matter
    Another three cases this week where authorities failed to get it right on the most basic point - the requirement to respond within 20 working days. Any authority which is still having problems in this area should use our self-assessment toolkit module, "Responding on time".


  • Every exception in the EIRs is subject to the public interest test
    When considering the exceptions in regulation 10 of the EIRs, it's not enough to be satisfied that the exception applies. The public authority must also consider whether the public interest in withholding the information outweighs the public interest in making it available: only if it does can the authority withhold the information. In Decision 155/2017, we found that the authority hadn't considered the public interest test, with the result that it couldn't refuse one part of the request because it was manifestly unreasonable.


  • When refusing information which is otherwise available, it's important to tell the requester where they can find it
    The FOI Act and the EIRs both allow public authorities to refuse requests if the information is already accessible to the requester (e.g. online). However, there's not much point telling the requester they can find the information elsewhere if you don't tell them where it can be found. In Decision 155/2017, we found that the authority had failed to do this, so couldn't rely on the relevant section of the EIRs.


Decisions issued:

  • Decision 148/2017 Ms X and the Scottish Higher and Further Education Funding Council (SFC)
    Ms X asked for information about an accommodation lease and associated works to the property. We found that the SFC failed to comply with her request for review within the timescale allowed by the FOI Act.


  • Decision 150/2017 Ms X and Fife Council
    The Council was asked for correspondence relating to a House in Multiple Occupation. It withheld the information under a number of exemptions. The Commissioner accepted that the Council was entitled to withhold the information under the exemption concerning investigations carried out by Scottish public authorities (section 34).


  • Decision 151/2017 Angus Pattison and East Dunbartonshire Council
    The Council was asked about the funding of the Bears Way project. The Council disclosed some information.

    Following an investigation, the Commissioner found that the Council had failed to disclose all of the relevant information it held. As all of the information was disclosed during the investigation, we did not require the Council to take any action.


  • Decision 152/2017 Mr X and the Scottish Prison Service (SPS)
    Mr X asked for information about data provided to the Court of Session in the course of a petition for judicial review. The SPS considered the request to be vexatious and refused to comply with it. We agreed that the request was vexatious.


  • Decision 153/2017 Ms W and Aberdeenshire Council
    This involved a request by a parent for their child's school and social work records. We found that the Council failed to comply with the request for review within the FOI Act's timescales.


  • Decision 154/2017 Mr Q and the Scottish Prison Service (SPS)
    The SPS was asked for information relating to its Parole Handbook. We found that the SPS failed to respond to part of the request for review within the FOI timescales.


  • Decision 155/2017 Mr B and East Dunbartonshire Council
    The Council was asked for information about a planning application and housing development. It failed to respond to the initial request, and withheld all of the information on review.

    The Commissioner found that the Council didn't hold some of the information asked for, and accepted that some information was already publicly available. However, she found that the Council wasn't entitled to rely on the exceptions claimed for other information, and also failed to provide reasonable advice and assistance. She ordered the Council to issue a new review outcome for parts of the request.


  • Decision 156/2017 Company X and Dumfries and Galloway Council
    The Council was asked for a range of information about waste management, including contracts, correspondence, data and licences.

    It initially stated that the request was manifestly unreasonable. We decided it wasn't manifestly unreasonable and ordered the Council to carry out a further review. The Council did so, disclosing some information. The remainder was withheld under exceptions in the EIRs, including those relating to information not held and commercial confidentiality.

    Company X didn't accept the Council's reasons for withholding information and appealed to us again. It believed the Council held more information. It also complained that the Council had been unhelpful in its handling of the request.

    During the investigation, the Council identified and disclosed more information. We were satisfied that it didn't hold any more information and that it was entitled to withhold information as commercially confidential. We didn't think the Council was required to be more helpful than it had been.

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