Decisions Round-up: 1 to 5 July 2013

We published 14 decisions this week.


Key messages:

  • Helping requesters narrow their request is part of your duty to advise and assist

While the Act permits you to refuse a request which will cost you over £600 to deal with, you do have a duty to advise and assist the applicant. In cases where it would cost too much to respond, this means working with the applicant to see if there is any way in which the request can be narrowed so you can provide some information within the cost limits. If we receive an appeal, we'll check to see if you attempted this.

  • You can refuse to confirm or deny if you hold information - but only if certain conditions are met

Several decisions this week concern cases where the authority refused to confirm or deny if it held information which the applicant asked for. The FOI Act allows this - but only in certain circumstances. Firstly, the option to take this route only applies to some of the FOI exemptions. These are set out in section 18(1) with section 38 recently added by the Freedom of Information (Amendment) Scotland) Act 2013. Secondly, it can only be applied where the information would be exempt if it was held and the public interest lies in withholding it.

  • Conducting proper searches can save time and resources later

Finding everything you hold at the first time of searching may involve a bit more effort at the time, but can save you getting involved in an unnecessary appeal in the long run. Don't wait until a case has been appealed to us to undertake rigorous searches - you may release more information during the investigation, but it can damage your reputation and undermine the right of the applicant to receive that information when they first asked for it.

  • Applicants - are your expectations realistic?

When you ask for information, you may have expectations of what the authority holds and how long it holds it for. If this turn out not to be the case, it can be very disappointing. Bear in mind that public authorities won't necessarily retain information for as long as you might expect. In Decision 117/2013, for example, an official had retired and his email account was disbanded. It's also probably not realistic to expect a record to be kept of the destruction of every document created by a public authority - although it is reasonable to expect the authority to have a destruction policy which sets out how records will be destroyed and what records will be kept. Authorities do have a duty to advise and assist you, and this would include explaining the situation to you.

  • Good records management can help you make your case to the Commissioner

Decision 118/2013 is a great example of where the existence of a detailed records management policy helped the authority demonstrate whether a particular piece of information would have been retained, and if there was likely to be a record of its destruction. In this case, the SPS were able to show the Commissioner that the document was not covered by their retention schedule and no record of its destruction would have been created.

  • A repeat request? The devil is in the detail

It may not be immediately obvious if a request is a repeat of a previous request. It's important to compare the exact wording carefully. In Decision 119/2013, a request which the authority treated as a repeat of a previous request turned out to be broader than its predecessor - and so not repeat.

  • Keep it simple if you can

When you are thinking about how to word your requests, it's better to make a series of short, focussed requests (where possible) rather than complex, intertwined requests. The authority has the same duty to respond to you regardless of how you compose your requests, but you're likely to get quicker, more complete responses if you help the authority by making it as clear as you can what you are asking for. If you end up having to appeal to us, we may find in your favour but you will have had to wait longer for your information.

Summary of decisions:

The Community Council asked Historic Scotland for a developer's viability statement relating to the demolition of Bank House, Pitlochry. Historic Scotland refused to disclose the statement on the basis that disclosure would prejudice substantially the confidentiality of commercial information (regulation 10(5)(e) of the EIRs). The Commissioner agreed; matters were at an early stage and disclosure would cause real prejudice to the developer.

Mr Paterson asked the Council for information about the sale of land in East Kilbride in the late 1980s. Although the Council originally told Mr Paterson it had destroyed the information, it later found a title packet. The Council provided one of the documents in the title packet to Mr Paterson, but withheld other documents on the basis that they were all publicly available via the Land Register. The Commissioner agreed that the Council was entitled to take this approach.

Public authorities are not required to comply with a request if the cost exceeds £600. In this case, Mr Attridge asked the Health Board for a list of individual invoices over £500. The Health Board publishes invoices over £25,000, but argued that it would cost more than £600 to comply with Mr Attridge's request. The Commissioner agreed that complying would cost more than £600, but noted (regardless of the fact it already publishes invoices over £25,000), that the Council should have advised Mr Attridge what information it could make available to him under the £600 cost limit.

  • Decision 116/2013 Mr Donnie Mackenzie and the Chief Constable of the Police Service in Scotland

Mr Mackenzie asked Police Scotland to confirm if they were involved in any joint surveillance operations and, if so, how many operations there were, how many staff were committed and how many people had been targeted. He also asked questions about the length of the surveillance operations. Police Scotland refused to confirm or deny whether they had been involved in any such operations (section 18 of FOISA). The Commissioner agreed that they were entitled to do this. Any information, if held, would be exempt from disclosure and it was in the public interest for Police Scotland not to confirm whether it held any relevant information: confirmation would impact on their investigations and could well be of advantage to criminals.

Mr Walker asked the Council about its decision in install speed cushions in Tofthill. The Council disclosed some information on review. Mr Walker believed that the Council held more information than it had disclosed - and the Council located additional information during the investigation. By the end of the investigation, the Commissioner was satisfied that the Council had disclosed all of the information it held.

Mr L, a prisoner, asked the SPS for information which would show that his "hall record" (a record used for day to day matters, such as recording the behaviour of a prisoner) had been destroyed. Mr L referred the SPS to its record retention policy, which states that destruction records must be retained. The Commissioner was satisfied that the SPS didn't hold a destruction record for Mr L's hall record and also that the SPS's record retention policies wouldn't require a destruction record to be created for this type of information.

Eighteen and Under, a charity, asked the Council to disclose the information the Council held about it. The Council failed to respond until the Commissioner got involved - when it did, it withheld some information on the basis that it was exempt from disclosure (the Commissioner later agreed that legal advice was exempt from disclosure). The Council also refused to deal with part of the charity's request on the basis that it repeated a request the charity had made to it in 2009 (section 14(2)). The Commissioner considered the wording of the 2009 request and concluded that the request was not repeat - the 2009 request focussed on the Council's decision to withdraw funding to the charity, while the 2012 request was much broader.

  • Decision 120/2013 Mr J Donnelly and the Chief Constable of the Police Service in Scotland

As with Decision 116/2013, the Commissioner agreed that Police Scotland were entitled neither to confirm nor deny whether they held information. She was satisfied that, if held, the information would be exempt from disclosure and that it was in the public interest not to confirm whether the information was held.

Mr Carrell made a number of wide ranging information requests to Ministers about their policy on civil nuclear power, particularly in relation to the operational lives of Hunterston and Torness power stations. It took almost a year for the Ministers to disclose information to Mr Carrell. Following an investigation, the Commissioner concluded that the Ministers had failed to give complete responses to all of Mr Carrell's requests and had failed to notify him that they did not hold some of the information he had asked for.

Mr Beurskens asked the SLCC for the outcome of a complaint it had dealt with. The SLCC refused to disclose this information; its founding legislation (the Legal Profession and Legal Aid (Scotland) Act 2007) made it a criminal offence for the SLCC to disclose the information. The Commissioner agreed that the information was exempt from disclosure under section 26 of FOISA, on the basis that disclosure was prohibited by the 2007 Act.

As with Decisions 116/2013 and 120/2013, the Commissioner agreed that Police Scotland were entitled neither to confirm nor deny whether they held information - this time in response to a request about a road traffic accident.

Ministers failed to respond to Mr Hutcheon's request and request for review until after Mr Hutcheon had made an application to the Commissioner. The Commissioner's decision notes the failures.

This decision looks at the failure of the Council to respond either to Mr Mackay's information request or request for review. As with Decision 124/2013, the Council replied only after the Commissioner got involved and the decision notes the Council's failures.

Ms Frail asked the University for an itemised breakdown of the expenses claimed by five former members of staff. The University disclosed the total amount paid against each claim by the members of staff, but refused to disclosure an itemised breakdown, on the basis that disclosure was exempt from disclosure under section 38(1)(b) (personal information) of FOISA. The Commissioner agreed; while there was a legitimate interest in how the University was managed, there was no legitimate interest in the level of detail Ms Frail had asked for.

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