Decisions Round-up: 23 September to 18 October 2019

It's that old chestnut again - failure to respond. More than half of our decisions here have been about authorities' failure to respond within the 20 day limit. Meeting FOI timescales is a statutory requirement, and failing to do so is a breach of the law. In this Round-up, we also look at personal data - whether a number can be personal data if it enables individuals to be identified, and whether or not requests for criminal offence data can be disclosed.

Learning points:

  • Is your authority struggling with timescales? Help is available
    More than half the decisions we're covering in this Round-up are about authorities failing to respond to requests - and requests for review - on time. Resources may be stretched, but it's a legal requirement to respond on time. Authorities struggling to respond on time might find completing our self-assessment toolkit "Responding on time" helpful.

    And remember that we monitor authorities' compliance with timescales. Where it's clear that timescales are becoming an issue, we have powers to intervene.
  • Requesting criminal offence data is unlikely to result in disclosure
    In Decision 145/2019, the requester wanted to know whether a named person was being prosecuted for a particular offence. Since the GDPR and Data Protection Act 2018 came into force last year, there are new rules for dealing with this type of request. However, the outcome will usually be the same - information about an identified, or identifiable, living individual's criminal offences will almost never be disclosed under FOI.
  • Expense claims won't always be disclosed
    Expense claims, particularly of senior employees, will usually be disclosed under FOI. However, in Decision 149/2019, we agreed that disclosing the expense claims of volunteers could be withheld. The volunteers had no reasonable expectation that their expense claims would be made publically available. We also noted that, in this case, disclosing the claims could discourage other individuals from volunteering.
  • Can a number be personal data?
    The short answer is yes - provided there is a realistic prospect of someone being identified from the number. However, this needs careful thought. In Decision 151/2019, the authority argued that disclosing how many homophobic hate crimes (where the victims were police officers) had been reported to the Procurator Fiscal in Wick in 2017 and 2018, would lead to individuals being identified. We disagreed, taking into account matters such as the fact that the request covered full years, that no additional information about the alleged offence(s) had been requested and that committing a homophobic hate crime would not necessarily bear any relation to the sexual orientation of the victim.


Decisions issued:

The following cases all involve authorities failing to respond to requests or requests for review in the timescales set down by FOI law:

  • Decision 139/2019 Culture and Sport Glasgow (aka Glasgow Life)
    Scotstoun Sports Stadium: shared usage and potential development.
  • Decision 140/2019 NHS Greater Glasgow and Clyde
    Roofing problems, pigeon droppings and Cryptococcus infections at the Queen Elizabeth University Hospital.
  • Decision 141/2019 Scottish Ambulance Service Board
    Time taken to dispatch an ambulance.
  • Decision 142/2019 Police Service of Scotland
    Compliance with the Risk Management Authority’s Framework for Risk Assessment, Management and Evaluation
  • Decision 143/2019 West Dunbartonshire Council
    Riverside Walkway Project and the Young’s farm proposal for the relocation of Dumbarton Football Stadium.
  • Decision 144/2019 East Dunbartonshire Council
    Planning documentation in relation to an extension at a specific address.
  • Decision 150/2019 NHS Greater Glasgow and Clyde
    Reports/reviews related to the Interventional Neuroradiology Service since the start of 2016.


Other decisions:

  • Decision 145/2019 Police Service of Scotland
    Police Scotland were asked whether a named individual had faced prosecution or was due to face prosecution under section 112 of the Local Government Finance Act 1992. Police Scotland refused to provide any information, stating that an individual's offences or possible convictions were exempt from disclosure. We agreed.
  • Decision 146/2019 Scottish Ministers
    The Ministers were asked about the arrangements for accessing Further Education college provision for the profoundly disabled in England or in Scotland. Following an investigation, we agreed that the Ministers did not hold the information.
  • Decision 147/2019 NHS Dumfries and Galloway (NHSD&G)
    NHSD&G was asked about legal advice. They withheld all of the information on the basis that it was subject to legal professional privilege, but disclosed some of it during the investigation. We agreed that they were entitled to withhold the remaining information (i.e. the actual legal advice and request for the advice).
  • Decision 148/2019 East Ayrshire Council
    The requester asked the Council for a breakdown of costs regarding the 2016 Family Summer Programme in Dalmellington and Onthank. The Council stated it did not hold such a breakdown and we agreed.
  • Decision 149/2019 Children's Hearings Scotland (CHS)
    CHS was asked for the expense claims of three officers of the Glasgow Children's Hearing Panel, all volunteer posts. It withheld the expense claims, as it considered them to be the personal data of the officers involved and exempt from disclosure. We agreed.
  • Decision 151/2019 Police Service of Scotland
    The requester asked Police Scotland for the number of homophobic hate crimes reported to the Procurator Fiscal in Wick in 2017 and 2018 where the victims were police officers. Police Scotland refused to say how many such crimes had been reported, arguing that disclosing the number would lead to individuals being identified and would breach the data protection principles. We did not agree that disclosing the number would identify individuals and required Police Scotland to disclose it.

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