Decisions Round-up: 22 August to 2 September 2016

This week's Round-up has tips about applying exemptions which both requesters and authorities will find useful, including how emissions information is treated differently under the EIRs, how other legislation might be relevant to deciding if information can be disclosed or not, and what to do if disclosure is likely to affect a third party.

Learning points:

  • Emissions and the EIRs exceptions
    Don't forget that some of the exceptions in the Environmental Information Regulations can't be used where the information is about emissions. In Decision 177/2016, the requester argued that the information was about emissions and so the exception in regulation 10(5)(f) couldn't be used. In this case we disagreed, but there will be circumstances where this applies.


  • Consult the people disclosure is likely to affect
    The Section 60 Code (the Scottish Ministers' good practice code) recommends consulting third parties if disclosure is likely to affect them. The public authority did this in Decision 178/2016. Even though the consultation was inconclusive, we still found it helpful in deciding whether the information should be disclosed.


  • Authorities need to be able to evidence harm
    If you're applying an exemption, you need to be able to provide evidence that it's more than just a possibility that disclosure will cause harm. Before the Commissioner can accept that an exemption applies, she needs to be persuaded that the harm is likely, not just hypothetical. The Commissioner was not persuaded that harm would occur in Decision 179/2016.


  • Requesters can confuse their rights under FOI and the Data Protection Act, but authorities can help
    Decision 180/2016 is an example of a case where the requester tried to use FOI to obtain information which, if it was held, would be their own personal data. In line with its duty to provide advice and assistance, the authority provided the requester with advice on making a subject access request under the Data Protection Act.


  • Other legislation might be relevant to FOI requests
    In many FOI cases, we need to consider the right to information in the context of other legislation. Other legislation can prevent the disclosure of information. It can also be relevant when deciding whether disclosure would cause harm or would be in the public interest. Decision 181/2016 involved a whistleblowing allegation, which is subject to the Public Interest Disclosure Act, while Decision 185/2016 looked at complaints against councillors, and the relationship between FOI and the Ethical Standards in Public Life etc. (Scotland) Act. In both cases, we agreed that the information shouldn't be disclosed and that the public interest lay in withholding the information.


  • FOI is about recorded information - remember to tell the requester if you don't hold it
    If you receive an information request and you know the answer to the request, but the answer's not recorded anywhere, you need to tell the requester you don't hold the information. But remember your duty to provide advice and assistance: there's nothing to stop you answering the question. Decision 183/2016 has an example of an authority answering the question but forgetting to tell the requester it didn't hold the information.


  • The "information otherwise accessible" exemption: make sure the information is actually accessible
    When applying this exemption, authorities need to check that the information is where they think it is. Decision 184/2016 looks at a case where a prisoner asked for a copy of a Handbook. The Scottish Prison Service assured him that it was available in the Prison Library and applied the exemption on the basis that the Handbook was reasonably accessible to him. It turns out it wasn't in the library.


Decisions issued:

  • Decision 176/2016 Roy Mackay and Scottish Borders Council (the Council)
    Mr Mackay asked for information about archiving and retrieving emails of former Council employees. Following a review, the Council told Mr Mackay that it didn't hold any relevant information. However, the Council's response to a later request made Mr Mackay question whether he should have received some information in response to his previous request.

    After investigating, we accepted that the Council didn't hold any information directly covered by the request. However, it would have been helpful for the Council to provide Mr Mackay with some of the information which he later received in response to a second, differently-worded request on the same subject.


  • Decision 177/2016 Mrs L and the Scottish Environment Protection Agency (SEPA)
    Mrs L asked for correspondence between SEPA and a third party. SEPA disclosed some information. It withheld other information, relying mainly on the exception in regulation 10(5)(f) (prejudice to the interests of a third party) and the personal data provision. We accepted that information was correctly withheld. We also considered regulation 10(6), which sets out that some of the exceptions in the EIRs can't be used if the information is about emissions. However, we found that the information in this case was not about emissions.


  • Decision 178/2016 Equal Say Advocacy and Glasgow City Council (the Council)
    Equal Say Advocacy asked the Council about the Framework Agreement for social care services in Glasgow, including the cost of these services. The Council withheld some information about costs, arguing that disclosure would harm the commercial interests of the care providers and of the Council. We agreed that the Council was right to withhold this information.


  • Decision 179/2016 Joe Stenson and the Board of Trustees for the National Galleries of Scotland (the National Galleries)
    This involved a request about items damaged or lost by the National Galleries since 2000, including their insurance values. The National Galleries disclosed information, but withheld the insurance values, arguing that disclosure would harm the prevention or detection of crime. The National Galleries also argued that disclosure would be in breach of the Museums Association Code of Ethics and so would harm the effective conduct of public affairs. We were not satisfied that either of these exemptions applied and ordered the National Galleries to disclose the insurance values.


  • Decision 180/2016 Ms X and Police Scotland (the Police)
    Ms X asked the Police about a specified incident. The Police refused to confirm or deny whether they held any information about the incident, arguing that disclosing the information, if held, would breach the Data Protection Act. We agreed the Police were entitled to take this approach.


  • Decision 181/2016 Mr T and City of Edinburgh Council (the Council)
    This case involves a whistleblowing incident. We were satisfied that those involved in the incident would have no expectation that any information would be disclosed and that disclosing the report would make it much less likely that people would whistleblow. We therefore agreed that disclosure would harm the effective conduct of public affairs (section 30(c) of the FOI Act).


  • Decision 182/2016 Mr F and the Scottish Prison Service (the SPS)
    Mr F asked the SPS for its policies on the seventh data protection principle, which requires steps to be taken to safeguard personal data. By the end of the investigation, we were satisfied that the SPS had given Mr F all the information it held.


  • Decision 183/2016 Carolyn Neilson and NHS Greater Glasgow and Clyde (the NHS)
    Mrs Neilson asked the NHS for the identity of the Lead Investigator for a specified Significant Clinical Incident. The NHS gave Mrs Neilson a name, but in fact didn't hold any recorded information confirming that this person had been the Lead Investigator. We recognised that the NHS had been trying to help Mrs Neilson, but it should have issued a notice confirming that it didn't hold the information.


  • Decision 184/2016 Mr A and the Scottish Prison Service (the SPS)
    This involved a request to the SPS for the latest version of its Parole Handbook. The SPS first told Mr A that the Handbook was available in the prison library and so was otherwise accessible to him (section 25 of the FOI Act). During the investigation, it became clear that the Handbook was not available through the library. The SPS then disclosed the Handbook to Mr A, but withheld screenshots of the SPS Prisoner Records Database. We agreed that disclosing the screenshots would harm the maintenance of security and good order in prisons (section 35(1)(f)). We agreed the screenshots should be withheld.


  • Decision 185/2016 ABW Consultants Ltd (ABW) and West Lothian Council (the Council)
    ABW asked the Council for details of complaints made against a named councillor. During the investigation, the Council provided ABW with copies of documents that were already in the public domain. We agreed that the rest of the information was exempt from disclosure under section 30(c) of the FOI Act - disclosure would harm the Council's ability to carry out future investigations.


  • Decision 186/2016 Marianne Arnott and East Dunbartonshire Council (the Council)
    Ms Arnott asked the Council about wheelchair ramps removed from sheltered housing within the last five years. This decision finds that the Council failed to respond to Ms Arnott's request for review within the FOI Act's 20-working-day timescale.

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