Decisions Round-up: 22 to 26 February 2016

Understanding a request properly from the start is an essential part of good FOI. This week's round-up features a number of cases where simple mistakes at the start of the process led to real problems later on. Whether it's confirming whether you actually hold the information, searching for the right information, or even considering the public interest in revealing whether you have it, investing time up-front in understanding the request can help avoid trouble later on…


Key messages:

  • Make sure you hold information before claiming it's exempt…
    Authorities can only apply exemptions to information they actually hold. The first step in responding to any request is to find out what is held: everything else should flow from that (Decision 036/2016).


  • And when making sure you hold it, be thorough!
    A vital part of responding is making sure you find all the information covered by the request. Thorough searches are an essential part of getting FOI right. Something has gone wrong if you find more information during our investigation, and we see this happen far too often - most recently in Decision 040/2016.


  • If an authority has said it holds information, it can't then refuse to confirm or deny whether it holds it…
    The "neither confirm nor deny" provision in section 18 of the FOI Act must be claimed from the start if it's to make any sense. An authority can't confirm that it holds information (or that it doesn't), and then try to "put the genie back in the bottle" by later claiming it wouldn't be in the public interest to say whether it holds the information or not. Even if the authority was wrong in its initial response, acknowledging this will say too much about the information to make a "neither confirm nor deny" response tenable (Decision 036/2016).


  • If you're claiming legal privilege, make sure the information is still confidential
    Information can only be subject to legal professional privilege if it's still confidential. If it's already been shared with a third party, chances are it will have lost that quality. In Decision 038/2016, we found that part of the information had previously been shared with the requester, so was no longer confidential.


  • Take care when interpreting requests
    If a request has a very specific focus, it won't necessarily help the requester if you interpret it too widely. In Decision 037/2016, the requester was clearly concerned about a very specific issue, and it wasn't helpful, in this case, for the authority to direct him to more general information about the wider issue instead.


Decisions issued:


  • Decision 036/2016 Marc Ellison and West Lothian Council
    The Council was asked for information about measures to detect the potential radicalisation of students. The Council initially informed Mr Ellison that it held the information, but it was exempt from disclosure. During our investigation, the Council informed Mr Ellison that it didn't hold any information covered by his request. We accepted that the Council did not hold the information, but found that it should have told Mr Ellison this.


  • Decision 037/2016 Allan Nugent and Glasgow City Council
    Mr Nugent asked the Council for information about its taxi tariff formula and, in particular, about how it was affected by the element "fair treatment of the public". The Council initially told him it did not hold any information covered by the request, but on review it directed him to information published on its website. We found that this was not an appropriate response - it was clear that the information Mr Nugent was seeking was not the information published by the Council.


  • Decision 038/2016 Alan Stewart and Argyll and Bute Council
    The Council was asked for information relating to legal advice it had obtained. The Council disclosed some information, but withheld legal advice under section 36(1) of the FOI Act. We found that some of the information had lost its confidential status, and that that information should be disclosed.



  • Decision 040/2016 Organisation S and the Scottish Ministers
    The Ministers were asked for information about the Climate Challenge Fund and Sustaining Dunbar. The Ministers disclosed some information, but withheld the remainder. They disclosed more information during our investigation, which we found should have been disclosed earlier. Although we accepted that the Ministers were entitled to withhold some of the remaining information, we also found that they had withheld internal correspondence which should be disclosed.

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