Decisions Round-up: 20 to 24 March 2017

A wide range of learning points in this week's round-up, including reminders that FOI reviews should be as impartial as possible, that public authorities are required to publish certain types of salary information, and that information requests must be responded to promptly (which might mean in less than 20 working days…)

Learning points:

  • Authorities should respond as soon as possible
    Both FOI and the Environmental Information (Scotland) Regulations  (the EIRs) contain similar requirements when it comes to responding on time. There's a 20 working day time limit, but the authority's also required to respond "promptly" (under FOI) or "as soon as possible" (under the EIRs). These phrases have much the same effect - authorities must respond within 20 working days and, within that timescale, must avoid any unnecessary delay.

    For example, an authority may have a well-established practice of responding by email to emailed requests. If the authority then fails to respond in that way for no good reason, it's likely it will have delayed the requester's response unnecessarily - and will therefore not have responded as "soon as possible", as required by the legislation (Decision 038/2017).
  • Reviews - good practice and fairness
    As the Section 60 Code says, a review should allow the authority to take a fresh look at its response to an information request. The procedure needs to be fair and impartial and allow decision makers to look at the request afresh. In that context, it's important to avoid the perception of bias as well as actual bias - in Decision 040/2017, we commented that the authority should have avoided the presence on the review panel of a member of staff directly affected by the outcome of the review.
  • Public authorities must publish certain types of salary information
    One decision this week involved a request for information on senior staff remuneration (Decision 040/2017). Public authorities must remember that, under the FOI Act's publication scheme duty, they are required to publish certain remuneration information, normally on their website. This will include, as a minimum, details of staff pay and grading structures, payments to board members, and certain details of senior staff expenses. Our Guide to the Model Publication Scheme has information and examples of the types of information that public bodies are required to publish.
  • Records management is at the heart of the ability to respond effectively
    Many of the handling problems public authorities experience in responding to requests are rooted in inadequate records management. In Decision 034/2017, we found that responding to the request would have been much simpler if the relevant files had been organised effectively. As the Scottish Ministers' Code of Practice on Records Management (the Section 61 Code) says, "Records systems should be designed to meet the authority's operational needs and using them should be an integral part of business operations and processes." Responding to information requests is a statutory function, so systems should be designed to help an authority respond.
  • Requesters - an authority isn't required to create information to answer your request
    Under FOI a public authority is only required to provide information if it holds that information at the time a request is received. Even if it might be fair to believe the authority should hold information, they're not required to create information they don't already hold. In Decision 036/2017, we accepted that the Scottish Ministers didn't record time spent by staff on particular tasks, and so didn't hold that information. 
  • Environmental information requests should be responded to under the right regime
    Information on major construction projects will usually be environmental information, which means requests for that kind of information should be responded to under the EIRs. Rights are different between FOI and the EIRs, so it's important to recognise which one applies to a request. In Decision 037/2017, we found that a College should have responded to a request for financial information about its new campus development under the EIRs.

Decisions issued:

  • Decision 034/2017 Rob Edwards and Scottish Ministers
    Mr Edwards asked for unpublished information on the status of beavers in Scotland. The Ministers responded late, disclosing some information and withholding other information under various EIR exceptions. After a review, the Ministers informed Mr Edwards that the request was manifestly unreasonable.

    We agreed that the request was manifestly unreasonable. However, we were very critical of the Ministers' handling of the request and review, and found that the Ministers failed to provide Mr Edwards with reasonable advice and assistance.
  • Decision 035/2017 Mr L and Police Scotland
    Police Scotland were asked for information about offences under the legislation to prevent offensive behaviour at football matches. We found that Police Scotland failed to respond to the request for review within the required timescale. 
  • Decision 036/2017 Severin Carrell and Scottish Ministers
    The Ministers were asked for information about the Scottish Government's 2014 consultation on an interim constitution for Scotland. The Ministers claimed they didn't hold some of the information and we accepted this. However, we also found that the Ministers failed to respond to the information request and request for review within the FOI Act's timescales.
  • Decision 037/2017 Dr Peter Geoghegan and City of Glasgow College
    Dr Geoghegan asked for contract information relating to the development of a new campus. The College withheld some of the information on the basis that disclosure would be harmful to commercial interests.

    We found that the College had considered the request under the wrong legislation. The request was for environmental information so the College should have considered it under the EIRs. We required the College to respond under the EIRs.
  • Decision 038/2017 Salmon & Trout Conservation Scotland and Scottish Ministers
    The Ministers were asked about the Salmon Conservation Regulations. They responded within 20 working days. We were asked to decide whether the Ministers had nevertheless responded to the request "as soon as possible", as required by the EIRs. Having considered the circumstances of the response, we were not satisfied that they had.
  • Decision 040/2017 Mr X and the University of St Andrews
    The University was asked for information on senior management remuneration. It withheld this under the FOI exemptions that cover personal information and information whose release would harm the effective conduct of public affairs. The Commissioner did not uphold the application of these two exemptions. She required the University to disclose the information.


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