Decisions round-up: 20 to 31 January 2014

We have published five decisions since 20 January 2014.

Key messages:

  • FOI rights apply to information which is held - not information which should be held

Under FOI laws, we cannot compel an authority to take steps to obtain and provide information it should hold, but does not - for example as a result of a failure in processes, or where information has been lost or inadvertently destroyed. We will, of course, require the authority to demonstrate it has undertaken reasonable searches to establish that this is the case.

  • Ensure you carry out reviews where an applicant has expressed dissatisfaction

If, having dealt with a request, you receive further correspondence from the applicant expressing dissatisfaction with any part of the way you handled the request, then you should deal with at as a request for review. This will be the case even if the correspondence also contains new requests for additional information.

  • When assessing "harm", focus on the actual information requested

If you apply an exemption which requires you to demonstrate that disclosure will cause harm, you must be able to show that the prospect of harm is real and likely, not just a theoretical possibility. In Decision 008/2014, the Commissioner found that disclosure of the number of companies may lead to speculation about the identities of the companies on the list, but would not enable identification - and so the case for real and likely harm was not made.

  • Requests carry rights, even if you deal with them as "business as usual"

Many authorities deal with straightforward requests which they can respond to easily without applying their formal FOI procedures (often referred to as "business as usual" requests). Remember that any written request for information, however straightforward, carries rights - including the right to request a review. If you deal with a request initially as "business as usual" and the applicant asks for a review, you should apply your procedures for dealing with a review, including advising the applicant of their rights.

  • Ask yourself - is it environmental?

Make sure you identify environmental information as early as you can, and deal with requests for environmental information under the EIRs. If you deal with environmental requests under FOISA rather than the EIRs, the Commissioner will find that you have breached the EIRs - even if the outcome for the applicant is not affected.

Summary of decisions:

Mr X asked the SPCB for information about the standards which apply when MSPs respond to correspondence. The SPCB provided Mr X with information from its Code of Conduct for MSPs, but Mr X stated he wanted the SPCB to review his request, specifically querying if it held information relating to correspondence with prisoners. The SPCB dealt with the request through its general enquiries route, believing the outcome would be the same. However, because it hadn't dealt with the request as an FOI request, the SPCB breached FOISA by failing to advise Mr X of his rights of appeal under FOI.

When Mrs Balfour and Mrs Myles asked for information relating to a title to land, the Keeper told them the information was incomplete because of an error in the archiving process. Mrs Balfour and Mrs Myles went on to make a further request for all information held in the Keeper's archives concerning the land title. When they appealed to us, the Commissioner found that the Keeper had provided good advice and assistance to Mrs Balfour and Mrs Myles, and had taken adequate steps to locate the information. The Commissioner could not require the Keeper to recreate information which had been inadvertently destroyed before the request was made.

The Sinclairs asked NHS Lothian for a copy of their Health and Safety Policy with the section referring to door locking during speech therapy sessions highlighted. When the Board provided an extract from its Restraint Policy (which contained the relevant information), Mr Sinclair expressed dissatisfaction with the handling of his request, and asked for a review and a copy of the full Restraint Policy. The Board responded by suggesting that the applicants meet with the Complaints Team to discuss their concerns. When the Sinclairs appealed to us, the Commissioner accepted that, while the request for review contained a request for new information, the Board should have carried out a review of the applicants' dissatisfaction with the initial request.

LTRAG asked the SPSO for copies of reports undertaken by the SPSO's Planning Adviser, concerning a complaint carried out by the SPSO. The SPSO claimed the information was exempt on the grounds that disclosure was prohibited by provisions of the SPSO Act which prevent release of information obtained in connection with a complaint - a decision it upheld on review. When LTRAG appealed, the SPSO told us it believed some of the information was environmental and sought to withhold it under confidentiality regulations in the EIRs. The Commissioner upheld the SPSO's decision to withhold the information, but found it should have partially dealt with the request under the EIRs in the first place.

 Mr Laing asked SE for information relating to any register listing companies known to be in financial distress, including the number of businesses on such a list since 2007/8. SE advised Mr Laing that it did not hold the information for all the years he has asked for, and withheld the list itself on the grounds that its release would prejudice the conduct of public affairs. By damaging the trust between SE and the companies concerned (who had provided this sensitive information in confidence), SE's ability to assist such companies could be harmed. The Commissioner accepted this argument in relation to the full list, but not in relation to the number of companies on the list.

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