Decisions Round-up: 21 December 2015 to 8 January 2016



Happy New Year! An intriguing selection of issues in this week's round-up to start 2016:

  • Think EIRs: if requested information is environmental, the EIRs always apply!
  • An unusual twist in an "information otherwise accessible" case
  • FOI rights don't require authorities to provide information held by third parties.
  • There's no direct equivalent to the FOI Act's "Royal Family" exemption under the EIRs


Key messages:

  • All requests for environmental information must be responded to under the EIRs
    In three of the cases covered in this round-up, public authorities failed to recognise that the requests were for environmental information. It's essential that members of staff can recognise environmental information requests and know how to respond to them, particularly given the different charging regimes, different reasons for withholding information, etc. In Decisions 193/2015 and 196/2015, we were able to issue a decision based on additional EIRs submissions from the authority during the investigation. However, in Decision 190/2015, the authority refused to give submissions on the EIRs. We therefore issued a decision requiring them to consider the request afresh under the EIRs.
  • If you work for a public authority, you may have access to information that is not otherwise accessible to others
    Under section 25 of the FOI Act, a public authority does not have to disclose information if it is "otherwise accessible" to the requester. In Decision 195/2015, we look at a case where an authority refused to provide information to a requester under the FOI Act, because, as an employee, he could access it without making an FOI request.
  • Authorities don't have to ask for information from other bodies to respond to an FOI request
    This was one of the issues considered in Decision 198/2015. The authority told the requester it didn't hold some of the information he had asked for. The requester wanted the authority to obtain a copy from a third party. It is clear that the FOI Act only gives the right to request information held by the public authority receiving the request. The authority is not expected to obtain information it does not hold from third parties.
  • Help prevent unnecessary delays during an investigation
    When we ask authorities to provide us with withheld information for our investigations, we ask them to provide a schedule of documents listing what information is being withheld and why. In Decision 193/2015, the authority gave us the information, but no schedule. At the second attempt, the authority did provide a schedule but with a large amount of unnecessary information in it. This caused further delay and cost for us and for the authority.

    The schedule we ask public authorities to complete is available on our website. We encourage authorities to use it when compiling information to respond to a request. This will save time later in the event of an appeal.
  •  There's no equivalent to the FOI Act's "Royal" exemption in the EIRs
    Under the FOI Act, information can be withheld if it relates to communications with senior members of the Royal Family. There is no direct equivalent under the EIRs, however, so when the requested information is environmental, authorities can only withhold if the EIR exceptions permit it. In Decision 190/2015, we concluded that a request of this type was for environmental information, so required the authority to consider it again under the EIRs.

Decisions issued:

  • Decision 190/2015 Marc Ellison and Cairngorms National Park Authority (the Park Authority)
    Mr Ellison asked the Park Authority for copies of any correspondence it had had with Prince Charles. The authority withheld the information under section 41(a) of the Act, which covers communications with the Royal Family. We decided that the correspondence was, in fact, environmental information and that the request should have been responded to under the EIRs. We ordered the Park Authority to consider the request again under the EIRs.
  • Decision 191/2015 George Watson and Dumfries and Galloway Council
    Mr Watson asked the Council for the audited accounts of three community councils. Although the Council initially failed to respond to the request, it disclosed redacted copies on review. We ordered the Council to disclose some of the personal data it had withheld.
  • Decision 193/2015 Alexander Ward and Shetland Island Council
    Mr Ward asked the Council for information about a planning application. The Council responded to the request under the FOI Act but, during the investigation, agreed that the request was for environmental information. We required the Council to disclose some additional information to Mr Ward.
  • Decision 194/2015 Andrew Dundas and the Scottish Ministers
    Mr Dundas asked the Ministers for the legal advice it had received about charging differential fees to students from the rest of the UK in the event that Scotland were to become a member state of the EU. We agree with the Ministers that the information was legally privileged and exempt from disclosure.
  • Decision 195/2015 Colin Kerr and NHS Dumfries and Galloway (the Health Board)
    Mr Kerr, an employee, asked the Health Board for monitoring figures and records. The Health Board refused to disclose the information to Mr Kerr on the basis that, as an employee, the information was accessible to him other than by making a request under the FOI Act. We agreed.
  • Decision 196/2015 Neil Vassie and Argyll and Bute Council
    Mr Vassie asked the Council for information about a planning application in Lochgilphead. The Council gave Mr Vassie links to where he could find the information on its website. Following an investigation, we were satisfied that the Council had identified and disclosed all of the information it held falling within the scope of Mr Vassie's request. However, the request was clearly for environmental information and should have been responded to under the EIRs.
  • Decision 198/2015 Ed Pybus and the Scottish Ministers
    Mr Pybus asked the Ministers for information relating to communications with Cluff Natural Resources Plc and Forth Ports. Mr Pybus did not believe that the Ministers had provided him with all of the information they held. We carried out an investigation and were satisfied that the Ministers had in fact disclosed all of the information they held.

Resolved cases

We also resolved nine cases in December without the need for a formal decision. The summaries below provide insight into the less visible, but very important, role of settlement and improving relationships between authorities and requesters. These are the reasons the cases were closed:

  • A "Neither Confirm nor Deny" response was no longer appropriate
    Section 18 of the FOI Act allows public authorities to refuse to confirm or deny whether they hold information. In one case, the requester was unhappy that the authority had done this. During the investigation, because information had subsequently been published by another body, the authority reconsidered its position and decided it could no longer refuse to confirm or deny whether it held the information. It disclosed some of the information to the requester and the requester was happy to withdraw his application.
  • The requester wouldn't allow us to tell the authority his reasons for dissatisfaction
    Under the FOI Act, we're obliged to notify public authorities of any application made and to give them an opportunity to comment on the application. In a very unusual case, a requester refused to allow us to tell the authority why he was dissatisfied with its response. This meant that we could not comply with our own statutory obligations and we decided to treat the application as abandoned.
  • All the information was disclosed during the investigation
    In two cases, requesters withdrew applications after the authorities involved disclosed all of the information they held during the investigation.
  • The requesters withdrew their applications
    In three cases, the requester decided to withdraw applications shortly after making them.
  • Some information was disclosed during the investigation
    In two cases, the authority provided further information and explanations to the requesters during the investigation. The requesters were satisfied with what they had been told and decided to withdraw their applications.

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