Decisions Round-up: 24 to 29 July 2016

We're busy updating the FOI and EIR guidance published on our website. This week's round-up highlights a few issues where our updated guidance could provide a helping hand...from thinking about whether people can be identified from statistical data, to the difference between "information" and "documents" in FOI. Read on…


Key messages:


  • Statistics can be personal data
    Numbers and statistics can sometimes be personal data, even if no-one is named. Decision 162/2016 looks at a request for the number of pupils excluded at a named school over a short period. We were satisfied that the pupils involved would be able to be identified from the numbers.

    We've just updated our guidance on the personal data exemption. This looks in more detail at the cases where disclosing numbers will mean disclosing personal data.


  • FOI gives a right to information, not to documents
    Courts on both sides of the border have concluded that FOI gives requesters a right to receive information rather than copies of documents, but that there will be cases where, in practice, it is necessary to provide a copy of a document in order to communicate all of the information in it. Decision 163/2016 looks at a case where the requester expected to receive a copy of a document, but instead received a transcript.

    We've just updated our guidance on the right to receive information as opposed to the right to receive copies of documents.


  • A change in circumstances might mean that more information can be disclosed
    When authorities think about whether an exemption applies, they need to think about the circumstances that exist at the time of the request. The passage of time can mean that information which was withheld in response to an earlier request can now be disclosed. Decision 164/2016 is one such case.


  •  Do you remember what information you withheld and under which exemptions?
    When an authority responds to a request, it's important for it to keep a record of what information is disclosed, what is withheld and what exemptions are relied on to withhold it. In Decision 159/2016, the authority was criticised by the Commissioner for failing to do this - failures by the authority significantly delayed the investigation. We've prepared a schedule which authorities can use to help record the outcome of a request.


  • When does responding to a request involve creating information?
    FOI gives us a right to ask for recorded information held by an authority. Authorities aren't required to create new information in order to respond to a request. In Decision 168/2016, the authority argued that responding would require it to create new information. When deciding whether responding would involve creating new information, we'll look at things like the amount of skill and judgment needed to respond. In this case, we were satisfied that basic IT and coding skills were all that was needed to get the answer from information the authority held. We therefore concluded that the authority did hold the information.


Decisions issued:


  • Decision 159/2016 Roy Mackay and Scottish Borders Council
    Mr Mackay asked the Council about an investigation carried out on its behalf by another local authority. Following our investigation, we were satisfied that the Council had generally complied with the FOI Act. However, we ordered it to disclose some additional information to Mr Mackay.


  • Decision 162/2016 Mr S and City of Edinburgh Council
    Mr S asked for the number of pupils who had been excluded from a named school over a period of time. We agreed with the Council that the information was exempt. Although Mr S had asked for numbers rather than names, we were satisfied that individual pupils could be identified if the numbers were released. We were also satisfied that disclosure would be unfair and would breach the first data protection principle in the Data Protection Act.


  • Decision 163/2016 Mr N and East Lothian Council
    Mr N asked the Council for burial records. The Council provided a transcript of some records and photocopies of others. Mr N was dissatisfied as he believed that he was entitled to receive photocopies of all of the records. We disagreed - the FOI Act gives a right to information, not to documents. However, some information had been missed from one of the transcripts and we ordered the Council to provide Mr N with the missing information.


  • Decision 164/2016 Friends of Loch Etive and Argyll and Bute Council
    This involved a request about a planning agreement for a fish farm at Loch Etive. This wasn't the first time that a request had been made for the information and previously we agreed it could be withheld. However, the passage of time, and the fact that judicial review proceedings had now been completed, meant that it could now be disclosed.


  • Decision 165/2016 Benjamin Dean and the Scottish Ministers
    The Ministers were asked about a steering group which looked at how doctors are trained. They withheld information on the basis that it related to the formulation and development of government policy. During the investigation, the Ministers disclosed some information to Mr Dean. We were satisfied that the remaining information was exempt.


  • Decision 166/2016 William Skidmore and Aberdeen City Council
    Mr Skidmore asked why an agenda item at a Council meeting had been heard as a matter of urgency. We were satisfied that the Council didn't hold any recorded information which would answer the request.


  • Decision 167/2016 Mr T and Police Scotland
    The Police were asked about fingerprint evidence recovered from a crime scene. They refused to confirm or deny whether they held the information or whether it existed (section 18 of the FOI Act). We agreed with this approach.

  • Decision 168/2016 Ms X and the Scottish Qualifications Authority (the SQA)
    Ms X asked the SQA for statistics about the 2015 higher maths exams. The SQA said it intended to publish the statistics, and so refused to disclose it under the "future publication" exemption of the FOI Act. The SQA gave Ms X a link to where she could find the information on its website once it was published. Ms X subsequently sought a review on the basis that the link didn't give her the information she was looking for.

    The SQA then argued that it didn't hold the information because providing it would involve creating new information. We disagreed - in this case, responding to the request did not mean creating new information. We ordered the SQA to disclose the information.

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