Decisions Round-up: 19 to 30 June 2017

We have two cases this week where we had to consider a seemingly basic question: is the requested information held? The very first sentence in the FOI Act says that people are entitled to information that is held by an authority. If an authority doesn't hold the information, it doesn't have to put together new information just to answer the request. This basic principle can sometimes be overlooked by requesters if they believe that an authority will hold information on a particular topic. In some cases, authorities can refuse to tell requesters whether they hold information - we look at one of those cases this week. There's also a case where the lack of good administrative arrangements resulted in an authority breaching its FOI duties.

Learning points:

  • Requesters - authorities may not hold information you expect them to
    Sometimes you may expect an authority to hold information on a particular subject, but our investigation finds that the authority doesn't hold that information. This happened in Decisions 095/2017 and 096/2017.
  • Refusing to confirm or deny
    FOI law allows an authority, in certain circumstances, to refuse to confirm or deny whether it holds information it's been asked for. Basically, the authority needs to be able to show that if the information was held, it could be withheld under one of the exemptions listed in section 18 of the FOI Act, and that it would be contrary to the public interest to say whether the information exists or is held. In Decision 097/2017, the request was about a live criminal investigation, and we found that the "neither confirm nor deny" provision could be relied on.
  • Administrative arrangements should help FOI responses to be made on time
    FOI responses are time-critical, so it's important that information requests and requests for review are brought to the attention of the right person within the authority as soon as possible. In Decision 098/2017, the response was delayed because the review request was placed in a file with other papers and not brought to the reviewer's attention.

Decisions issued:

  • Decision 094/2017 Dawn Morrison and Tayside NHS Board (NHS Tayside)
    Ms Morrison asked about waiting times for Cardiology outpatient appointments over a five year period. We found that NHS Tayside failed to respond to the information request or the request for review within the required timescales.
  • Decision 095/2017 Andrew McKinnon and the Chief Constable of the Police Service of Scotland
    Police Scotland were asked how long it takes to process a shotgun certificate. They told Mr McKinnon they didn't hold this information. We accepted this.
  • Decision 096/2017 Donald MacKintosh and Renfrewshire Council
    The Council was asked about the failure to follow procedures in relation to a 1996 redevelopment of properties in Paisley. The Council explained that it wasn't involved in the acquisition of the properties and so didn't hold any information covered by the request.

          We found that the Council had responded to the request properly - it didn't hold the information.

  • Decision 097/2017 Mr X and the Chief Constable of the Police Service of Scotland
    Police Scotland were asked about the reporting of a criminal allegation. They refused to confirm or deny whether the information existed or was held by them. The Commissioner accepted that it would not be in the public interest for Police Scotland to reveal whether the information existed or was held.
  • Decision 098/2017 Mr P and the Scottish Prison Service (the SPS)
    Mr P asked about the handling of "legal" or privileged" correspondence sent to prisoners in HM Prison Edinburgh. We found that the SPS failed to respond to the request for review within the required timescale.

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