Decisions Round-up: 22 October to 2 November 2018

Statistics about people, and whether they are personal data, is a question that has lingered around FOI since long before recent changes to data protection law. This week we made a decision about whether any individuals could be identified from a set of statistics. There's also a case which highlights the need to be specific about the requested information when considering the harm in disclosing it. Another case answers the question of what happens when limitations in an authority's systems mean it will be too costly to respond to an FOI request.

Learning points:


  • Personal data - people must be identifiable
    Particularly when looking at statistics, there must be a reasonable prospect of individuals being identified from the information before it will be personal data and therefore subject to the relevant exemptions or exceptions. In Decision 167/2018, we weren't satisfied that individuals could be identified from the information, so the exemption did not apply. There's more on this in our Guidance on the personal data exemptions.

  • Authorities must think about the actual information they're withholding before claiming disclosure will be harmful
    When looking at exemptions or exceptions based on substantial prejudice or some other test of harm, it's vital to consider the effects of disclosing the particular information covered by the request. Authorities can't just consider these tests in general: they must be able to link disclosure of that information in particular with the harm in question. In Decision 167/2018, the public authority argued that two harm-based exemptions applied, but we weren't satisfied that the harm test had been met for the information under consideration.


  • It may be too costly for the authority to comply with a request because of limitations in its own systems
    In assessing whether the cost limit provisions in the FOI Act apply, we're basically assessing a question of fact - in all the circumstances of that particular request, will it cost more than £600 for that public authority to provide the requester with the information they've asked for? Even if limitations in the authority's own systems are at the root of the inability to provide the information within the cost limit, the provisions will still apply and the authority won't have to comply with the request. We looked at this in Decision 168/2018.

Decisions issued:


  • Decision 162/2018 Mr K and Glasgow City Council
    Mr K asked the Council about the handling of previous information requests. It considered the request vexatious and so refused to comply with it. We agreed the request was vexatious.


  • Decision 163/2018 Mr F and Highland Council
    The Council was asked about negotiations relating to an access dispute. In response, it provided an explanation, and during our investigation, it provided a related timeline of events. We were satisfied that the Council had responded to the request appropriately.


  • Decision 164/2018 Ms V and Glasgow City Council
    Ms V asked the Council about its Rough Sleeping Task Force. The Council initially stated that the information was publicly available, but later said it didn't hold any information. During the investigation, the Council identified and disclosed information falling within the scope of the request. We found that the Council failed to comply with the FOI Act when responding to the request.


  • Decision 165/2018 Mr X and Scottish Ministers
    The Ministers were asked for the legal basis of a decision, but responded that they did not hold the information. After an investigation, we accepted this.

  • Decision 167/2018 Mark Howarth and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked for the numbers of Registered Sex Offenders housed in multi-storey flats in the Glasgow City Council area. They refused to provide the information, arguing that it was sensitive personal data, that its disclosure would substantially prejudice the prevention or detection of crime and that it would be likely to endanger the safety of individuals.

    The Commissioner investigated and found that Police Scotland weren't entitled to withhold the information under the exemptions claimed. He ordered Police Scotland to disclose the information.


  • Decision 168/2018 Marc Ellison and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Ellison asked for a range of information about operational safety training, the completion of "Use of Force" forms, etc. Police Scotland said they weren't obliged to comply with two parts of the request as doing so would cost more than £600.

    We accepted that complying with one part of the request would cost more than £600, but not the other. We required Police Scotland to disclose the information or issue a new response to this part of the request.

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