Decisions Round-up: 19 to 23 September 2016

This week's cases highlight some of the lesser-known FOI learning points. For example, if a request is vexatious or repeated, the authority doesn't always have to respond to it, but does have to respond to any request for review. There are also pointers about what authorities need to tell requesters about taking their requests further; some of the things you need to think about when getting or giving consent to disclose personal data; and a reminder that disclosing information under FOI is putting it into the public domain.

Learning points:

  • When can an authority decide not to respond?
    If a request is vexatious or repeated, the FOI Act doesn't require authorities to respond to it if they have responded to a similar request from the requester and it would be unreasonable to expect them to respond to the later request. The situation is different when it comes to a request for review. The authority can decide not to carry out a review, but it must tell the requester that it won't do so, and give details of the right to appeal to the Commissioner.

    In Decision 189/2016 the authority didn't respond to either the request (which they were entitled to do) or the request for review (which they were not entitled to do).
  • Applying exemptions: is all the information exempt?
    Even if some information in a document is sensitive, that doesn't necessarily mean that none of it can be disclosed. In Decision 190/2016, we found that part of a report could be disclosed, even though the rest of the report was highly sensitive.
  • All public authority staff should be able to identify a request
    To make sure requests aren't missed, it's vital that anyone who might receive an information request is fully aware of what's expected if and when they do. There wasn't adequate awareness across the authority in the case which led to Decision 192/2016.
  • Authorities need to tell requesters how to take the request further
    The FOI Act sets out what a requester needs to be told when their request is responded to. For example, requesters must be told about their rights to take the request further if they wish. Even if the requester is experienced and seems quite familiar with their FOI rights, they still need to be given all of that information. In Decision 193/2013, the authority did not tell the requester about their right to appeal to the Court of Session.
  • Consent to disclose personal data needs to be treated carefully
    People can consent to the disclosure of their personal data in response to an FOI request. But remember that disclosure under FOI is to the world at large and not just to the requester.

    For consent to be given, the person needs to understand fully what would be disclosed and that the disclosure would be public. They must be in no doubt that they are free to refuse consent (whatever their relationship with the authority is). If someone's personal data is being disclosed because they have consented, it's important that full records of the discussions with them are kept. We looked at some of these issues in Decision 193/2016.
  • Be clear about what you're asking for (and authorities - get clarification if you're not sure)
    You're more likely to get a good response to your request if you are clear about what you're looking for. There are tips about how to frame your request in our Tips for Requesters. If an authority isn't clear what the requester is looking for, it should get clarification from the requester. Decision 194/2016 is an example of how a clearer request might have allowed a fuller response earlier, without the need for the requester to appeal to us.
  • Try to get searches right first time
    Effective searches are central to handling a request properly. To meet the requester's rights, it's important to make every effort to get these right first time. Decision 195/2016 provides an example of a case where it took several attempts, even after we'd received an appeal, to confirm what information the authority held.
  • Remember disclosure under FOI is making the information available to the public
    We've looked at this issue already in relation to consent and personal data, but Decision 196/2016 has another example where it's important to bear in mind that FOI makes information available to the world at large. It's not just available to one person, or a small group of people, and that has to be considered when assessing the implications of disclosure. In this case, the fact that disclosure was into the public domain, and not just to the requester, was relevant to whether or not substantial harm would be caused by disclosure.

Decisions issued:

  • Decision 189/2016 William Stewart and North Lanarkshire Council
    This request was about a contract between the Council and a company, and also the employment and retirement details of the Council's former Chief Executive. The Council did not respond to the request or request for review.

    The Council was not required to respond to Mr Stewart's request, because it had already told him that previous, similar requests were vexatious and/or repeated. However, in response to the request for review, the Council should have notified Mr Stewart that it was not going to carry out a review. Because the Council failed to do this, we found that it had failed to comply with the FOI Act.
  • Decision 190/2016 Mark Howarth and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Howarth asked for part of a Significant Case Review report. The Police withheld the information, mainly on the grounds that disclosing it would cause distress to the victims of the crime. We found that the information was not about the criminal, the crime, or the victims. Instead, it focused on police practice and procedure. We felt that this kind of information was less likely to cause distress. We ordered disclosure, with the exception of a small amount of personal data.
  • Decision 191/2016 Martin Flanagan and East Dunbartonshire Council
    Mr Flanagan asked for information about the Lennoxtown Initiative. We found that the Council failed to comply with the timescales in the FOI Act.
  • Decision 192/2016 Mr X and Lothian Health Board (NHS Lothian)
    NHS Lothian was asked about its procedures for contacting the relatives of people admitted to an Accident and Emergency Department. It said that it didn't hold the information. We were satisfied that NHS Lothian did not hold the information, but also found that it failed to respond within the FOI Act's timescales.
  • Decision 193/2016 Mr X and Lothian Health Board (NHS Lothian)
    NHS Lothian refused to provide information about an interview with a staff member as it considered this would breach the Data Protection Act's data protection principles. We found that NHS Lothian was entitled to withhold the information under section 38(1)(b) of the FOI Act. However, it failed to inform Mr X of his right of appeal to the Court of Session.
  • Decision 194/2016 Company X and City of Edinburgh Council
    Company X asked the Council for information about Community Council publicity on three advertising drums. The Council provided some information, but Company X believed that the Council held more information. During the investigation the Council provided Company X with further information. By not providing Company X with all the information it held until after her investigation had started, the Council failed to comply with the Environmental Information Regulations.
  • Decision 195/2016 Alastair Tibbitt and Community Safety Glasgow (CSG)
    Mr Tibbitt wanted to know about CSG's CCTV processes and operations. CSG confirmed that it held some of the information he asked for, disclosing some of it, and withholding the remainder under various exemptions. Our findings were that:
    • some of the withheld information should have been disclosed;
    • CSG had failed to give Mr Tibbitt notice that it did not hold all the information he requested; and
    • CSG had failed to conduct adequate searches for that information when responding to Mr Tibbitt.

We ordered CSG to disclose further information to Mr Tibbitt.

  • Decision 196/2016 Angela Kimmett and South Ayrshire Council
    This request was for the Minutes of a Complaints Review Committee meeting. The Council refused to disclose the information, stating that disclosure was prohibited another piece of legislation. During our investigation, the Council claimed instead that disclosure would be likely to cause substantial prejudice to the effective conduct of public affairs (section 30(c) of the FOI Act). We accepted this.

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