Decisions Round-up: 21 September to 2 October 2015


Some information will always be better than no information...authorities shouldn't withhold entire documents if they can disclose some of the information they contain. In last week's Round-up, we see two examples of authorities demonstrating good practice by disclosing what information they could from documents. We also have details of the cases that we resolved in September without the need for a decision - including two where the request was responded to late because the request was sent to the authority's old address.

 Key messages:

  • Don't forget the balancing exercise when it comes to third party personal data
    In most cases, when complying with a request would involve disclosing another person's personal data, the authority needs to balance the interests of the person making the request against the interests of the third party. The Commissioner's guidance gives some examples of the things authorities might want to think about when carrying out this balancing exercise. In Decision 148/2015, we agreed that the personal data of the relatives of authority employees did not have to be disclosed.
  • Disclose what you can
    It's good practice for public authorities to disclose redacted ("blacked out") versions of documents rather than to withhold entire documents. In Decisions 148/2015 and 149/2015, the public authorities disclosed redacted version of the documents the requesters had asked for. In both cases, we agreed that the remaining information was exempt from disclosure.
  • Legal advice and the public interest test
    It's worth remembering that the exemption for legal advice is not absolute. That means that legal advice can be disclosed if the public interest favours disclosure. However, there are very strong public interest arguments for withholding legal advice and that means that public authorities will generally be entitled to withhold it. Decision 150/2015 is a reminder of this.

Decisions issued:

  • Decision 146/2015 Donald Wright and East Dunbartonshire Council
    Mr Wright asked the Council about the maintenance, repair and inspection of a street where there had been an accident. The Council failed to respond to Mr Wright's request or request for review within the timescales allowed.
  • Decision 147/2015 Mr X and South Lanarkshire Council
    Mr X asked the Council about disturbances at a named property. The Council refused to confirm or deny whether it held any information about this, as to do so would breach the Data Protection Act. We agreed the Council were entitled to take this approach.
  • Decision 148/2015 Helen McArdle and Strathclyde Partnership for Transport (SPT)
    Ms McArdle asked the SPT for information from its Register of Interests in relation to a number of SPT executives. The SPT disclosed a redacted version of the Register to Ms McArdle. It withheld some information on the basis that it was personal data, disclosure of which would breach the Data Protection Act. We agreed that SPT was entitled to withhold the information. Some of the information was about third parties who were related to the executives, and they would have no expectation that information about them would be made public.
  • Decision 149/2015 Firm A and Transport Scotland
    A firm of solicitors (acting on their own behalf and not on behalf of a client) asked Transport Scotland for a copy of the Memorandum of Understanding entered into by the First Minister, the ferry company DFDS and Forth Ports, in relation to the Rosyth/Zeebrugge ferry service. Transport Scotland disclosed a redacted version of the report. We were satisfied that the remaining information would prejudice substantially the commercial interests of DFDS and Forth Ports and that the public interest favoured withholding the information.
  • Decision 150/2015 Alexander John Morrison and the Crofting Commission
    Mr Morrison asked the Crofting Commission for legal advice it had sought or taken on the interpretation of the Crofters (Scotland) Act 1993. We agreed that this was subject to legal professional privilege and that the communications between the Crofting Commission and its legal advisers were exempt from disclosure. 

Resolved cases

In some cases, where it is appropriate, we will work to resolve cases without the need for a formal decision. We resolved six cases this way in September. Here are the main reasons the cases were resolved:

  • The requester was satisfied with the information provided during the investigation
    In two cases, the authority provided information to the requester during the investigation. The requesters then decided to withdraw their appeals.
  • A subject access request was the better way forward
    The requester wanted his own personal data. A requester's own personal data is exempt from disclosure under FOI. We told the requester that he would be better to make a subject access request under the Data Protection Act to get the information he wanted. He agreed and withdrew his FOI appeal.
  • The information request was sent to an office no longer owned by the public authority
    In two cases (involving the same requester and the same authority), the requester sent his information request to a building which was no longer owned by the authority. The new owner found the requests and passed them on to the authority. This meant that the authority responded late to the request - but the requester understood why this had happened and withdrew his appeals.
  • The requester accepted that the authority didn't hold the information she had asked for
    Following an investigation, we were satisfied that the authority didn't hold the information the requester had asked for. We discussed this with the requester and asked if she still wanted a decision. She chose to withdraw her appeal.

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