Decisions Round-up: 25 to 29 April 2016

Altering, blocking or destroying information to prevent it being disclosed is a criminal offence. This week, we consider a requester's argument that an authority could be blocking information by applying exemptions to it.

Key messages:

  • Applying exemptions doesn't "block" information under section 65 of the FOI Act
    Under section 65 of the FOI Act (and regulation 19 of the EIRs), it is a criminal offence to alter, block, or destroy information with the intention of preventing the information being disclosed. In Decision 087/2016, the requester suggested that applying exemptions to information could mean that the authority was blocking the disclosure of information and breaching section 65. The decision makes it clear that authorities are entitled to apply exemptions, and that this does not mean that an offence is being committed.
  • Can all of your staff recognise information requests?
    Although not everyone needs to know how to respond to information requests, they do need to be able to recognise a request and know what to do with it. In Decision 088/2016, failure to recognise a request led to the public authority failing to comply with the timescales in the FOI Act.
  • Take care when interpreting requests
    Authorities need to consider carefully the scope of a request, as this will determine what searches must be carried out. In Decision 087/2016, we concluded that a request had been interpreted very widely but, despite this, the information which was actually covered by the request wasn't located until during our investigation.
  • Make sure you can demonstrate that an exemption applies
    Anyone who regularly reads our Decision Round-ups will recognise this learning point. In Decision 087/2106, the Council refused to disclose information on the basis that it was exempt under section 36(1) (legal professional privilege) of the FOI Act. However, the Council was unable to demonstrate, to our satisfaction, that the exemption applied.

Decisions issued:

  • Decision 086/2016 Mr X and the Scottish Prison Service (the SPS)
    Mr X requested SPS protocols and guidance on how long certain information should be kept before it is destroyed. The SPS disclosed some information when it responded to the request, and provided more information at review stage. Although we were satisfied that the SPS had disclosed all the information it held, we found that the SPS had originally failed to give Mr X reasonable advice and assistance by not telling him about other, related, information.
  • Decision 087/2016 Roy Mackay and the City of Edinburgh Council (the Council)
  • Mr Mackay asked the Council for information about an investigation it had undertaken on behalf of Scottish Borders Council. The Council withheld the information, arguing that it was subject to legal professional privilege. We disagreed. We were provided with no evidence to show that there was a solicitor/client relationship between the two Councils. We were also not satisfied that the investigation had been carried out in contemplation of litigation. We ordered the Council to disclose the information.
  • Decision 088/2016 Sandy Smith and Aberdeenshire Council (the Council)
  • Mr Smith wanted a risk assessment that had been carried out by the Council. We found that the Council failed to respond to Mr Smith's request and request for review within the timescales set down by the FOI Act and ordered the Council to respond.

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