Decisions Round-up: 1 to 12 April 2013

We published 13 decisions over the past two weeks.


Key messages:

  • Always check if you hold information before applying an exemption

You must make sure that you take proper steps to establish whether you actually hold information which has been asked for before deciding whether to apply an exemption or exception to it.  If you don't hold it, the correct action is to notify the requester of this fact.  And if you do hold it, you must consider how an exemption or exception applies to the particular information before you can apply it.

  • Information held in the past may no longer be held

If you ask for information which you believe was held at some time in the past, it is possible that the authority may no longer hold it, especially if a number of years have passed.  Even where an authority has adequate document retention and destruction procedures, it may not be reasonable to expect specific destruction records for every document.  Authorities should, however, be able to demonstrate to you that they have undertaken adequate searches for the information you have asked for.

  • Information must be held at the time of a request

When you ask for information, an authority must respond in relation to what it holds when you asked.  Just as some information held in the past may no longer be held when you ask for it, sometimes information may not be held because it has not yet been created.  This may happen, for example, if the information you are asking for is related to something current rather than historical.  Remember, your rights to information extend only to information which exists at the time of the request.  An authority is not obliged to create new information.

  • Dealing with FOI requests alongside enquiries on related issues

It is not unusual for FOI requests on a particular subject to be made at the same time as other activity, such as enquiries, on the same subject matter.  Depending on circumstances, it can be helpful for applicants if you deal with these related issues together ? and it may also be a more efficient use of your resources.  In Decision 053/2013, there was a time delay between responses to a parliamentary question and a FOI request on the same subject and this led to an appeal to us.

  • Check information is actually otherwise obtainable before telling the applicant

When deciding whether information is otherwise obtainable, you must check whether the available information actually corresponds to the information which has been asked for.  It is not enough that the information is on a related topic or answers the request partially.  If information which is in the public domain does not answer the actual request, then you cannot claim it is otherwise accessible.  In practice, this will usually mean checking what is available on your website, to ensure it corresponds with what you have been asked for.

  • Help applicants reduce the cost of their request rather than refuse outright

If an applicant's request will cost you over ?600 to comply with, you can refuse to deal with it.  However, before you do so, remember that you have a duty to advise and assist the applicant.  In cases where excessive cost is a factor, this normally means exploring with the applicant whether there is any way they can narrow their request so you can deal with it beneath the ?600 threshold.  See paragraph 1.9 of the Section 60 Code of Practice.

  • Commissioner must look at circumstances when a request was reviewed

When issuing a decision, the Commissioner must consider the circumstances of a case as they stood at the time an authority undertook the review.  Even where things change during our investigation, the decision must relate to the circumstances when the review took pace.  Where this happens, a subsequent request for the same information might lead the Commissioner to come to a different decision.

  • Information can often be adequately described by referring to the document which contains it

In order to be valid, an information request must describe information sufficiently well to enable an authority to identify what the requester is looking for, and locate and retrieve it.  Although it's true that FOISA gives a right to information rather than specific documents, it is also true that, where referring to a document is enough to enable the authority to find and retrieve it, then the request is likely to be valid.  The Commissioner published more detailed guidance on this in 2010, following a court ruling (link to guidance).

  • You must be able to justify any claim that you have a legitimate interest in another person's personal data

If you are seeking another person's personal data you must be able to justify any claims that it would be fair and lawful (because you have a legitimate interest) to provide it to you.  Don't argue in general terms, but be as specific as possible.  If your arguments are not well-reasoned, then the information may be withheld from you.

Summary of decisions:

Mr Cassidy asked the police for a list of potential suspects read out at a trial following the murder of Kevin "Gerbil" Carroll.  He asked for their names and ages, why they were suspects and how they were alleged to have been involved.  The Police refused, saying that the names and ages were sensitive personal data which could not be disclosed.  Other information was withheld because it would prejudice investigation and law enforcement.  When the case was appealed, the Commissioner agreed that some of the information was personal data and should not be disclosed.  However she found that the Police did not hold the other information which Mr Cassidy had asked for, and should have notified him of this.

Mr M asked the Board for a copy of a specific evaluation document that had justified the purchase of Aerial Rescue Pumps a number of years before.  The Board initially withheld the information claiming it was commercially sensitive.  However, when they reviewed this decision, they informed Mr M that they did not hold the information.  When the case was appealed to us, Mr M told us that he had been promised a copy of the document at a meeting with a (now retired) senior fire officer in 2009.  The Commissioner considered the searches that the Board had undertaken and was satisfied that, even though there was no record that the document had been destroyed, the Board no longer held it.

  • Decision 052/2013 - Learning Disability Alliance Scotland (LDAS) and Aberdeen City Council (the Council)

LDAS asked the Council for information relating to the personalisation of social care support.  It asked for a self-assessment questionnaire, resource allocation framework, and documentation relating to these, including an explanation of how points scored in the questionnaire translated into the framework.  The Council initially refused to release anything.  When LDAS asked for a review, the Council released the questionnaire and a spreadsheet which it felt contained the information LDAS was looking for in a "resource allocation framework".  The Council also informed LDAS it held no other information.  LDAS appealed ? it did not accept that the spreadsheet satisfied its request and it also believed that other documentation must be held.  The Council informed us that a statistical desktop exercise was underway which would create the information LDAS were looking for, but it was not complete.  The Commissioner accepted the Council did not hold the information.

Mr Lamont asked Ministers for information relating to the staff involved in the First Minister's trip to the USA at the same time as the 2012 Ryder Cup, and for costs associated with the trip.  Ministers did not respond, but provided the information when Mr Lamont asked for a review.Mr Lamont appealed to us, questioning Ministers' handling of his request.  Amongst other things, he believed that Ministers had published some of the information he'd asked for in response to a parliamentary question (PQ), and had not told him.  Ministers challenged this, claiming that the response to the PQ was more general, while Mr Lamont's request was for specific details.  The Commissioner accepted his.  She also agreed with Ministers that, while not legally bound to do so, it would have been helpful to respond to Mr Lamont at the same time as publishing the PQ response.

Mr M asked the Council for information relating to an offender programme.  The Council didn't respond, but when Mr M asked them for a review they provided some information, and told him they did not hold the rest.  They informed him that it was held by Aberdeenshire Council, which delivered the programme, and provided contact details.  Mr M did not accept that the Council didn't hold the information and appealed to us.  The Commissioner accepted that the Council did not hold the information.

Mr Okasha made 35 related requests to Ministers for information relating to the operation of the honours system, and specifically the nomination of Brian Soutar for a knighthood.

Minister initially withheld some of the information under exemptions relating to communications with Her Majesty etc. and honours, and on the grounds that some of it was already publicly available.  They then changed their position, stating they would neither confirm nor deny that some of the information was held, and citing other exemptions.  They also informed Mr Okasha that the cost of complying with some of the requests would exceed ?600.

When Mr Okasha appealed to us, the Commissioner found that Ministers were entitled to neither confirm nor deny some of the information was held, but commented that Mr Okasha would naturally find this puzzling given that Ministers had previously cited an exemption (implying they did hold the information).  She agreed that some requests would exceed the cost limit, but that Ministers had not provided adequate advice and assistance to Mr Okasha to narrow his request.  She also disagreed that some of the information was otherwise obtainable.

Mr Headspeath asked for a range of information relating to the maintenance and inspection of an uncovered drain/utility box in one of its parks, and records of inspections carried out within the park.  His request covered January to October 2012. The Council told Mr Headspeath that it didn't own the equipment, and so didn't hold the information he was asking for.  It also told him that its recorded inspections in parks covered play equipment only.  Inspection of utility equipment consisted of a visual check and contact with the relevant utility if any defects were spotted.  There were none for the time period Mr Headspeath was interested in.  The case was appealed to us, and the Council provided us with evidence that the equipment was owned by Scottish Water.  During the investigation the Council gave Mr Headspeath a road services report showing that a public complaint was made about the equipment in November 2012, which was after the time period Mr Headspeath specified in his request.  The Commissioner accepted that the Council did not hold any information which fell within the scope of Mr Headspeath's request, and had provided adequate advice and assistance to him.

In August 2013, Mr Cross asked the Council for a copy of the "Project Power" report which it commissioned from Deloitte LLP following allegations of impropriety in the awarding of contracts.  The Council refused to provide the report to Mr Cross, saying it would prejudice substantially the administration of justice (a police investigation was underway when the council reviewed Mr Cross' request ? a fact which the Commissioner confirmed with the Crown Office and Procurator Fiscal).  During the investigation, the police announced there would be no criminal charges in relation to part of their investigation and published information about the investigation.  However, the Commissioner is required to base her decision on how matters stood when the Council completed its review.  She found that disclosure of some parts of the report would not cause any harm and could be released e.g. table of contents.In relation to the remainder, she accepted that, at the time of the review, the public interest in withholding the report outweighed that in releasing it.

  • Decision 058/2013 - Mr John WH McLean and the Scottish Parliamentary Corporate Body (SPCB)

Mr McLean asked the SPCB for information about Jim Martin's (the Scottish Public Service Ombudsman) annual performance reviews.  The SPCB released some background information, but withheld the reviews themselves because they contained Mr Martin's personal data.  When Mr McLean appealed to us, the Commissioner agreed that this information was Mr Martin's personal data and that it should not be disclosed.  The Commissioner accepted that Mr McLean had a legitimate interest in the accountability of the SPSO, but agreed with the SPCB that this can be satisfied by the SPSO's annual reports and performance information published on his website.  He did not have a legitimate interest in seeing the performance reviews.

  • Decision 059/2013 - Mrs N and the Police Complaints Commissioner for Scotland (PCCS)

Mrs N asked the PCCS for a meeting note and correspondence about a complaint she had made.  The PCCS refused, claiming release would prejudice the conduct of public affairs (in that its release would inhibit the police from co-operating with PCCS investigations in future).  During the Commissioner's investigation, the PCCS explained that, as it has no independent power to investigate complaints, it relies on the co-operation of the police.  The views expressed at the meeting were very frank, and this helped ensure the investigation was carried out properly.  The PCCS feared that, if the information were disclosed, police colleagues would be less frank in future and this would harm the complaints process.  The Commissioner accepted this in relation to the meeting note, but found the emails contained action notes and should have been released.

Mr L asked the SPS for copies of certain guidance and policy documents.  The SPS refused, claiming that FOISA gives a right to information, not to documents.  It also claimed that the information was otherwise obtainable by Mr L, as it was in the prison library.  During the investigation, the SPS told the Commissioner it no longer wanted to claim the information was otherwise obtainable.  The Commissioner found that Mr L had described the information sufficiently well for SPS to locate and retrieve it ? and therefore the request was valid.

Mr R asked the Council for details of the tertiary and professional qualifications of two named Council employees.  The Council refused, saying the information was the employees' personal data, and release would breach the data protection principles under the Data Protection Act .  Mr R argued he had a legitimate interest in the information, because of his dissatisfaction with a recruitment process.  On investigation, the Council informed the Commissioner that the employees concerned were not involved in that recruitment process and the Commissioner agreed that Mr R did not have a legitimate interest in their personal data.  She upheld the Council's decision to withhold it.

Mr Simpson had asked the Council for copies of road inspection reports.The Council informed Mr Simpson that it did not hold the reports he was asking for, because the results of road inspections were directly uploaded into the Council's computer system.  Reports from the computer system had already been provided to him.  When he asked for a review, the Council provided Mr Simpson with more details on the processes it followed when inspecting roads, but Mr Simpson appealed to us.  The Council provided evidence of the searches it undertook, and the Commissioner accepted it did not hold the information.

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