Decisions Round-up: 22 to 26 April 2019

Criminal offences, substantial harm and inaccurate information all feature in this week's learning points.


Learning points:

  • What's already in the public domain?
    Decision 058/2019 reminds authorities to check if information is already in the public domain before applying exemptions. If the authority is relying on an exemption that contains a harm test, it's very difficult to argue that disclosure will cause substantial harm if the information has already been published.
  • Authorities need to satisfy us that an exemption applies
    In Decision 058/2019, we make it clear that it is for the authority to provide us with evidence of harm, not for the Commissioner to go out and find it. The Commissioner's briefings set out in detail what type of evidence we need for each exemption and what sort of things we'll be looking for.
  • Information can still be "held" even if it's not 100% accurate
    Requesters have a right to ask for recorded information "held by" an authority. Information might not be 100% accurate, but an authority will still hold the information. In Decision 059/2019, Police Scotland argued that it didn't hold information on the number of times individuals had refused to give their computer passwords during stops and searches under the Terrorism Act. We disagreed. While we accepted that not every instance of a refusal might have been recorded, in the absence of evidence of a wider failure to record the information, we could not accept that Police Scotland didn't hold the information.
  • Don't destroy information once a request has been received
    It's a criminal offence to deliberately destroy information once a request has been received in order to prevent it being disclosed. In Decision 064/2019, we were satisfied that there had been no deliberate attempt to destroy CCTV footage, but found that the authority hadn't taken reasonable steps to prevent it being overwritten. Even if the information would normally have been deleted between the time when the request was received and the time when the authority responds to the request, the FOI Act makes clear that the authority must take reasonable steps to prevent destruction of the information. For more about deleting and amending information following the receipt of a request, see our guidance.

Decisions issued:

  • Decision 058/2019 Mr T and the Scottish Ministers
    The Ministers were asked for a range of information about loans made to third parties for over £1.5 million. This included the amount of the loan, the interest rate charged and the current balance. The Ministers withheld some information as they considered disclosure would substantially prejudice commercial interests or the effective conduct of public affairs. We were not satisfied that the exemptions applied and ordered the Ministers to disclose the information.
  • Decision 063/2019 Paul Hutcheon and Police Scotland
    Schedule 7 to the Terrorism Act 2000 gives the police the power to stop and search individuals at airports, ports, etc. if they believe the individuals may have been involved in terrorism. Both of these decisions deal with requests to Police Scotland for a range of information about the use of Schedule 7. In both cases, we found that some of the information Police Scotland had been asked for was exempt from disclosure. However, we ordered Police Scotland to carry out a further review of each response: we weren't satisfied that Police Scotland were entitled to tell the requesters that they didn't hold some of the information asked for. We also concluded that Police Scotland were wrong to refuse to confirm or deny whether they held some information.
  • Decision 064/2019 Mr S and the Scottish Prison Service (the SPS)
    A prisoner asked the SPS for information from CCTV recordings on a specific date and time. By the time the SPS complied with the request, the CCTV footage had been overwritten. We found that the footage had not been deliberately destroyed (that would have been a criminal offence). However, it would have been "reasonably practicable" for the SPS to have prevented the CCTV being overwritten. Failure to do so breached section 1(5) of the FOI Act.

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