Decisions Round-up: 23 to 27 May 2016

We've got advice on using the FOI Act's "neither confirm nor deny" provisions in this week's round-up, along with a decision which has some useful guidance when considering whether the "commercial interests" exemption can be applied to older information.


Learning points:

  • "Neither confirm nor deny" is there for a reason
    The "neither confirm nor deny" provisions in section 18 of the FOI Act are important: there will be situations where it's clearly in the public interest to refuse to reveal whether information is held. This might apply, for example, when doing so would harm the prevention or detection of a crime. In such cases, section 18 will be the appropriate place to go. We explore the use of section 18 more fully in Decision 116/2016.


  • Helping a requester now will reduce problems later
    Authorities have a duty to advise and assist requesters. Telling the requester about the kind of information the authority holds and providing background information alongside a response can help the requester understand the outcome. And the more they understand, the less likely they are to appeal. We explore some of these issues in Decision 115/2016.


  • Authorities must explain any exemption they use
    The FOI Act requires authorities to tell the requester what exemption they're using and why, every time an exemption is applied. Even if a request is refused because the information is available elsewhere (section 25), the requester must be told about the exemption. Never assume the requester will know this: it should always be explained. (Decision 114/2016).


  • Commercial interests will change over time
    Authorities can withhold information under FOI if its disclosure would seriously harm someone's commercial interests (section 33). It's important to remember though that the likelihood of harm will reduce with the passage of time. In Decision 115/2016 we weren't satisfied that the exemption could be applied to information which was around eleven years old, and which didn't reflect the current financial arrangements between the authority and its service provider.


  • Is there evidence of harm?
    In order to apply an exemption with a harm test, an authority must be able to make a case that the harm will occur. In Decision 115/2016 we weren't satisfied that the authority had given us enough evidence to explain why harm was likely to result from disclosure.

Decisions issued:

  • Decision 114/2016 David Edes and Highland and Islands Airports Ltd (HIAL)
    Mr Edes asked HIAL for details of every aircraft holding a landing card for one of its airports, with the annual charge paid in each case. HIAL supplied some information on fees and on the number of cards issued. It withheld other information, either because it considered it commercially sensitive or because it was personal data and the data protection principles wouldn't allow disclosure. While we accepted that the information HIAL withheld was exempt, we also identified procedural failings in its responses.


  • Decision 115/2016 Mr X and Leisure & Culture Dundee (LACD)
    Mr X asked LACD about an agreement for the provision of figure skating coaching in Dundee. LACD withheld some of the information because it believed disclosure would harm the service provider's commercial interests: we found that it was correct to do this in part, but not in relation to information that was several years old and no longer reflected current financial arrangements.

    We also agreed that LACD could withhold personal details relating to the service providers, but found that it should have given Mr X more advice and assistance, to help him understand what information was held.


  • Decision 116/2016 Marc Ellison and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Ellison asked Police Scotland for information relating to a specific type of electronic device used by Police Scotland. Police Scotland refused to confirm or deny whether they held the information, or whether the information existed. The Commissioner found that Police Scotland were entitled to do this. The decision includes comment on when it's appropriate to neither confirm nor deny and when it's appropriate to issue other kinds of refusal notice.

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