Decisions Round-up: 22 to 26 September 2014



         We published seven decisions between 22 and 26 September – details, links and learning points below.

        Key messages:

  • Make sure your record keeping is up to the job
    All public authorities need to have robust arrangements in place to allow them to identify and locate the information they hold.  In Decision 204/2014, the Commissioner was very critical of the Scottish Ministers’ handling of a request about the First Minister’s travel and subsistence, commenting that it took over eight months for her to establish what information the Ministers actually held. It was not surprising that people would be interested in finding out what expenses the First Minister incurred in his official duties – the Ministers should have prepared for such a request.   


  • The public interest in upholding some exemptions can be very strong
    Even where information relates to matters of significant current debate, there may still be compelling public interest reasons for withholding that information.  For example, the courts have always found it important to uphold legal professional privilege, as can be seen in Decision 202/2014.

    Similar considerations may apply when looking at material subject to the Law Officer Convention. In Decision 190/2014, we accepted strong public interest arguments for not identifying who provided the legal advice in question. However we didn’t believe public debate on the issues in question would be enhanced greatly by knowing this. On balance, we found that the public interest lay in favour of withholding the information in this case.


  • It’s important to focus your arguments on particular information and circumstances
    When withholding information, think about what it contains and the context in which it’s held and requested, before deciding that a particular exemption fits.  In Decision 200/2014, the Commissioner rejected largely generic arguments for withholding the information.  In this particular case, the nightclub in question had closed at the time of the request. This was an important consideration, which was not properly taken into account by the authority.


  • Look out for requests in other correspondence
    People may ask for information in correspondence about other matters, such as a complaint.  It is essential that all valid requests for information are identified and responded to accordingly. This was overlooked by the authority in Decision 201/2014.  


  • Compliance with timescales is still an issue
    In Decision 205/2014, the authority failed to respond to a request for review on time.


    Decisions issued:

  • Decision 190/2014 Mr Andrew Dundas and Scottish Ministers
    Mr Dundas asked the Ministers for information relating to legal advice on access to Scottish universities.  The Ministers responded by withholding some of the information under the exemption relating to the effective conduct of public affairs.  Following an investigation, we accepted this.


  • Decision 200/2014 Mr Eddie Nisbet and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Nisbet asked Police Scotland about incidents at a night club which had closed. Police Scotland released some information to Mr Nisbet, but withheld other information under exemptions relating to crime and safety.  Following our investigation, we found that Police Scotland had wrongly withheld the information and required them to disclose it to Mr Nisbet.


  • Decision 201/2014 Mr S and the Scottish Prison Service (the SPS)
    This case involved a request to the SPS for information about the allocation of gym places.  The SPS provided some information.  Following our investigation we found that the SPS had failed to provide Mr S with all of the information it held.  The information was provided to Mr S during the investigation.


  • Decision 202/2014 Mr David Caldwell and Scottish Ministers
    Mr Caldwell asked the Ministers for legal advice on charging students from the rest of the United Kingdom if Scotland were to become independent.  The Ministers withheld the advice on the basis that it was subject to legal professional privilege.  Following an investigation, we accepted this.


  • Decision 203/2014 Mr Simon Johnson and the Scottish Ministers
    This involved a request for a detailed breakdown of the expenses incurred by Team Scotland during the 2012 Ryder Cup visit to the USA. By the end of the investigation, the only information which hadn’t been disclosed was the name of a (UK) hotel one of the Scottish Ministers (not the First Minister) had stayed at.  The Ministers argued that disclosing the name of the hotel would make it possible to predict where a Minister was likely to stay in the UK, endangering their safety.  We disagreed – the Ministers hadn’t done enough to satisfy us that the Minister would be endangered.


  • Decision 204/2014 Mr Andrew Picken and the Scottish Ministers
    Mr Picken wanted to know what had been spent on travel and subsistence cards either by the First Minister, or on his behalf, since 2007. The Ministers withheld the names of the hotels the First Minister had stayed in, but, during our investigation, disclosed the names of the international hotels he had stayed in.  Unlike Decision 203/2014, we agreed the Ministers were entitled to withhold the names of the UK hotels – having met with the Police, we were satisfied that there was enough evidence to show that disclosing the names of the domestic hotels would endanger the First Minister’s safety, as well as the safety of the public.

    The Commissioner had significant concerns about the Ministers' handling of the case and these are addressed above.


  • Decision 205/2014 Mr X and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr X asked Police Scotland for information about CCTV footage.  We found that Police Scotland failed to respond to Mr X’s request for review within the required 20 working days allowed for under the Act.

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