Decisions Round-up: 23 to 27 September 2013

 Seven decisions were published this week.


Key messages:

  • Sound evidence required for vexatious request refusals
    As seen in Decision 204/2013 where an authority relies on section 14(1) of the Act, it is vital that you are able to provide sound evidence and reasoning in support of your application of section 14(1). And requesters, when making an application to us, this guidance will help you to explain why you think your request is not vexatious.


  • Be sure to respond to the actual request
    In Decision 205/2013 we found that the authority, by not interpreting the request correctly, failed to tell the requester that it didn't hold the information he asked for.


  • Remember your duty to provide advice and assistance
    There are two good examples this week, demonstrating the importance of providing advice and assistance to requesters. For details, look at Decision 206/2013 and Decision 209/2013.


  • Information from court records is unlikely to be made available
    As demonstrated in Decision 206/2013 and Decision 207/2013 if the information requested falls within the scope of section 37(1)(a) of the Act, it is subject to an "absolute" exemption and consequently the public interest does not need to be considered.


  • Make your request as clear as you can
    It is a good idea when making a request to describe what you are looking for as clearly as you possibly can. Don't assume that the authority will automatically be aware of your reasons for making a request, as demonstrated in Decision 209/2013. The better you can describe the information you're looking for, the easier it will be for the authority to find it for you. The Commissioner's Tips for requesters guidance will help you with this. 


  • Authorities don't have to create information in order to reply to a request
    It can be difficult to determine whether responding to a request for a number (in Decision 210/2013, the number of documents prepared by a public authority) involves creating new information or collating existing information. If providing a number involves a simple calculation, then the public authority will hold the information. If, on the other hand, calculating the number will involve a lot of skill and judgement, the calculation will involve the creation of new information and the Commissioner will conclude that the authority does not hold the information.

Decisions issued:

  • Decision 204/2013 - Mr N and the Scottish Prison Service
    The SPS refused Mr N's request for information relating to timber production, on the grounds that it was very similar to a request it had previously complied with. During the investigation, the SPS changed its position, by withholding the information on the basis that the request was vexatious. We did not agree with the SPS's conclusion that the request was vexatious and required the authority to respond to Mr N.


  • Decision 205/2013 - Mr John McLean and the Scottish Public Service Ombudsman
    Mr McLean requested information about change control forms (forms which would show what changes had been made to guidance). The SPSO said it did not hold the specific information he was looking for. We agreed with the SPSO position, but also concluded that it had failed to notify Mr McLean of this.


  • Decision 206/2013 - Mr and Mrs B and the Scottish Court Service
    Mr and Mrs B made two separate requests for information about a court case. Following a review, which considered both requests, the SCS maintained that the information was exempt. During the investigation, it was established that the SCS did not hold information relevant to the second request, so the exemption had been incorrectly applied. We found that the SCS was correct to withhold the information relating to request one, but that it had failed to notify Mr and Mrs B that it did not hold the information relating to request two.


  • Decision 207/2013 - Mr and Mrs B and the Scottish Court Service
    Mr and Mrs B again made two separate requests, this time about a different court case. The SCS provided some of the information, withholding the rest on the basis of section 37(1)(a) (court records) of the Act. Although we agreed that some of the information was correctly withheld, we also found in relation to the second request that the authority had failed to provide the requesters with an appropriate level of advice and assistance.. The SCS also failed to provide the requesters with a response confirming that it did not hold some of the information Mr and Mrs B had asked for. 


  • Decision 208/2013 - Mr Ernest Hurry and the Scottish Ministers
    In this case, Mr Hurry made a request to the Ministers for information about two wind farm planning applications. The Ministers withheld some of the information on the grounds that it was personal data. Following our investigation (during which additional information was released to Mr Hurray), we agreed that the Ministers were entitled to withhold the remaining information.


  • Decision 209/2013 - Mr N and The Chief Constable of the Police Services of Scotland
    Mr N requested information about a children's play area. Following a review, the Police informed Mr N that they did not hold the information. We accepted that the Police did not hold the information, but concluded that they had failed to provide Mr N with reasonable advice and assistance in making his request.


  • Decision 210/2013 - Mr Alan Laing and the Scottish Ministers
    Mr Laing asked the Ministers for the number of documents produced for the Scottish Government by 16 of its workstreams. The Ministers don't keep a running total, so told Mr Laing they didn't hold the number. FOISA doesn't require public authorities to create information in order to respond to an information request - but when it comes to responding to requests like Mr Laing's, there is a difference between creating new information and collating existing information.

    The Commissioner took the view that the degree of skill and judgement the Ministers would have to apply to calculate the number Mr Laing had asked for was relevant in determining whether they held the information or not. The Commissioner was satisfied that the degree of judgement the Ministers would have to apply to determine whether particular documents fell within the scope of the request meant that the Ministers did not hold the information Mr Laing had asked for. If responding to the request had simply required the Ministers to make a simple calculation of the number of documents that had been prepared, the Commissioner would have concluded that the Ministers did hold the information.





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