Decisions Round-up: 25 February to 8 March 2019

This week, we learn about the dangers of interpreting requests too narrowly - getting clarification from about what the requester wants is important. We also saw a case where an FOI request for personal data needed responses under both FOI and data protection law. Finally, we look at two cases where exemptions were incorrectly applied and where information was disclosed during our investigation.

Learning points:

  • Understanding the scope of the request is essential
    In order to be sure that a reasonable search has been carried out, authorities must be confident that their interpretation of the request matches the intentions of the requester. Clarification should be sought where intentions are unclear, to avoid an overly narrow interpretation. In Decision 022/2019, we required the authority to issue a new response as it had failed to consider what the requesters meant.
  • Request for the requester's own personal data
    Where the information covered by an FOI request is the requester's own personal data, as in Decision 025/2019, it's good practice to respond under data protection legislation. However, to keep things straight, a public authority should also issue a refusal notice under FOI law, explaining why it is responding under data protection rules. This reminds the requester of their FOI rights if they disagree that the information is their own personal data.
  • Take care when applying exemptions
    We regularly investigate cases where the authority accepts (too late) that an exemption was wrongly applied, as in Decisions 024/2019 and 026/2019. Authorities should make sure that they actually hold the information, but also that they can meet all tests required for an exemption to apply.

Decisions issued:

  • Decision 022/2019 Mr and Mrs H and South Lanarkshire Council
    Mr and Mrs H asked the Council for cost of repairs and details of compensation claims on a stretch of road. The Council provided some information and, during our investigation, disclosed the total amount paid in compensation.

    We were not satisfied that the Council had correctly interpreted the scope of the request and required them to provide a fresh response.
  • Decision 023/2019 Mr X and the City of Edinburgh Council
    The Council initially refused to respond to requests from Mr X on the basis that they were vexatious. During the investigation, the Council changed its mind. We required the Council to respond in a different way.
  • Decision 024/2019 Mr M and the Scottish Ministers
    Mr M asked for correspondence between the Cabinet Secretary for Finance and the Constitution and the Finance and Constitution Committee of the Scottish Parliament in relation to loans and equity investments. The Ministers withheld some information which they believed would prejudice commercial interests.

    We found that the Ministers had correctly identified all of the information falling within the scope of the request, but were wrong to withhold it. This information was disclosed during our investigation.
  • Decision 025/2019 Mr Y and the Police Investigations and Review Commissioner (PIRC)
    Mr Y asked PIRC to confirm that it held, or had seen, specific legal advice about a complaint. He also asked it to confirm the status of the person providing that advice. PIRC considered that the request was for Mr Y's own personal data and responded to the request under data protection rather than FOI law.

    We agreed that the information sought was Mr Y's own personal data, but found that PIRC should have sent a refusal notice under the FOI Act.
  • Decision 026/2019 Mr N and the Scottish Ministers
    The Ministers were asked whether specific loans or loan facilities contained an option to convert the loans to equity and who had authority to do this. The Ministers withheld the information as disclosure was likely to prejudice commercial interests. It was subsequently disclosed during our investigation.

    We found that the Ministers had correctly identified all of the information falling within the scope of the request, but were wrong to withhold it.
  • Decision 029/2019 Mr Q and the Scottish Ministers
    The Ministers were asked about hospital waiting times, and provided information they believed would meet the request.

    After investigation, we were satisfied that the Ministers did not hold more information falling within the scope of this request. However, they failed to inform the requester that some information was not held, failed to provide adequate advice and assistance and failed to respond to the review request in time.

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