Decisions Round-up: 22 to 26 June 2015

There are lots of learning points in the decisions published by the Commissioner in the past week.

Information can only be withheld in response to an FOI request if it is held in the first place: you can't apply exemptions to information you don't hold. Requesters looking for the personal data of another person need to explain their legitimate interest in receiving the information. And the context in which requests are made is important when deciding whether they are vexatious.

All of these points, and more, are discussed in this week's DRU.

Key messages:

  • Does other legislation prevent you from disclosing information?
    If other legislation prevents you from disclosing information, the information is likely to be exempt from disclosure under section 26 of the FOI Act. See Decision 080/2015.
  • Check whether you hold information before deciding to withhold it
    This seems obvious, but we regularly see cases where an exemption has been applied to information which turns out not to be held by the authority, such as Decision 084/2015.
  • Remember to include information about appeal rights in your response
    In Decision 083/2015, we accepted that information should be withheld, but found that the authority hadn't included full details of the right to seek a review and the right to apply for a decision from the Commissioner - a breach of FOI law which could easily have been avoided.  
  • If you make a request for personal data, you may have to explain why you need it
    Personal data is protected by the Data Protection Act 1998 and can only be disclosed if the conditions in the 1998 Act can be met. One condition is that the interests of the person asking for the information must outweigh the privacy rights of the person whose data it is. So, you might be asked to explain your interest in the information.

    In Decisions 083/2015 and 087/2015, the requesters failed to show that they had any interest in the personal data, so there was nothing to weigh against the privacy rights of the people whose data it was.         
  • If you receive a request for personal data, you may have to ask the requester to explain why they need it
    In Decision 087/2015, it would have been helpful if the authority had asked the requesters at an early stage why they wanted the personal data. This would have helped the requesters understand how their request was being handled.
  • Context is important when considering whether a request is vexatious
    Decision 088/2015 shows how important context can be when determining whether a request is vexatious. Here, there was nothing obviously vexatious about the request, but it related to a matter which had been going on for 13 years. It was clear that the authority had made a number of attempts over the years to resolve matters, and that responding to the request would not bring resolution any closer. We found that the authority was entitled not to comply with the request.
  • Failing to respond is failing to meet a statutory duty
    Another reminder that it's important to respond to requests and requests for review within the statutory timescale. This week there are three decisions concerning such failures: Decision 079/2015, Decision 081/2015, and Decision 086/2015.

    If you need to improve your authority's performance, see our self-assessment toolkit Module 1: Responding on time.

Decisions issued:

  • Decision 078/2015 Ross May and Perth and Kinross Council
    Mr May asked the Council about the costs involved in running local government elections in 2012/13. The Council initially told Mr May that it could only respond to part of his request, as it held the other information on behalf of the Returning Officer, and not on its own behalf. The Council changed its mind during the investigation and disclosed the information to Mr May.
  • Decision 079/2015 David Henderson and the Scottish Ministers
    Mr Henderson asked for information about staff who worked on IT contracts for the Scottish Government's Agriculture, Food & Rural Communities Project. The Ministers failed to respond to Mr Henderson within the timescales set down by the FOI Act.
  • Decision 080/2015 Stewart V Mackenzie and the Scottish Public Services Ombudsman (SPSO)
    This request was for correspondence sent to and received by the SPSO in connection with an investigation of a complaint made by Mr Mackenzie. Under the Scottish Public Services Ombudsman Act 2002, the SPSO is barred from disclosing information obtained in respect of a complaint, except in limited circumstances. This meant that the information was exempt from disclosure under section 26 of the FOI Act.
  • Decision 081/2015 John Paterson and the Scottish Ministers
    Mr Paterson asked for information relating to illustrative projections for Scottish North Sea tax revenue. The Ministers failed to respond to his request for a review of their response within the timescale set down by the FOI Act.
  • Decision 082/2015 Bruce Sandison and the Scottish Ministers
    Mr Sandison asked for information from communications between Marine Scotland and the Scottish Government relating to the effect of sea lice infestations at marine salmon farms. The Ministers provided some, but not all, of the requested information. Mr Sandison challenged the decision to withhold the names of the individuals who had provided advice to Ministers. We accepted that this information was personal data and that it had been correctly withheld, as none of the conditions that allow the disclosure of personal data were met.
  • Decision 083/2015 Lilian Gordon and the Scottish Criminal Cases Review Commission (SCCRC)
    Mrs Gordon asked the SCCRC for the number of cases a named person was involved in while working for the SCCRC during a period of secondment. The SCCRC refused to provide this information because they considered it to be personal data which was exempt from disclosure. We accepted this, but found the SCCRC's responses did not include full details of Mrs Gordon's right to appeal the refusal.
  • Decision 084/2015 Paul Delamore and the Chief Constable of the Police Service of Scotland
    Mr Delamore asked the Police for factual information from the investigation into the death of Willie Macrae in 1985. The Police refused to provide the information, claiming that disclosure would affect their ability to prevent and detect crime, or apprehend and prosecute offenders. We did not accept that this would happen and ordered the Police to provide the information. Our investigation also showed that the Police did not hold some of the information which had been "withheld".
  • Decision 086/2015 Andrew Picken and the Chief Constable of the Police Service of Scotland
    Mr Picken asked for information from internal reports relating to recording and classifying crimes. Police Scotland failed to respond to his request and request for review within the time allowed.
  • Decision 087/2015 Mr and Mrs M and the Scottish Prison Service (SPS)
    Mr and Mrs M asked for information relating to the discussion of a complaint. The SPS withheld the information because they considered it to be personal data which was exempt from disclosure. We agreed.
  • Decision 088/2015 Jim Donnelly and Chief Constable of the Police Service of Scotland
    Mr Donnelly asked the Police about an incident which had happened in 2002. We agreed with the Police that, viewed in context, the request was vexatious and they did not need to comply.

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