Decisions Round-up: 25 to 29 January 2016


This week's Round-up has a reminder for requesters of the benefits of keeping their requests separate from other correspondence - particularly where they've had a lot of correspondence with an authority.

Also this week, we published new guidance for authorities subject to the Environmental Information (Scotland) Regulations (the EIRs), but not the FOI Act.

  • Guidance for bodies covered by the Environmental Information (Scotland) Regulations but not the FOI Act 
    The definition of "Scottish public authority" in the EIRs is wider than in the Act. As a result, there are bodies (such as housing associations) which are covered by the EIRs, but not by the Act. This week the Commissioner issued new guidance aimed specifically at these bodies. As well as giving an introduction to the EIRs and links to other guidance, the guidance contains good practice advice on what these bodies need to do to comply with the EIRs. (The EIR guidance is available here).

Key messages:

  • Prejudice to effective conduct of public affairs? Make sure you know how the exemption works
    Section 30 of the Actc contains a number of exemptions, but public authorities sometimes get them confused. The main problem is with section 30(c). It allows authorities to refuse to disclose information where disclosure would "otherwise" prejudice substantially the effective conduct of public affairs. This means the exemption in section 30(c) can't be used where disclosure would harm the maintenance of collective responsibility (section 30(a)) or inhibit the free and frank exchange of advice or views (section 30(b)). The harm to the effective conduct of public affairs must come from something else for section 30(c) to apply.

    In Decisions 008/2016 and 009/2016, the authority did not believe that disclosure would inhibit the free and frank exchange of views (section 30(b)) and instead applied section 30(c). However, in applying section 30(c), the authority relied on arguments which related to section 30(b). Because the authority had applied section 30(c), the Commissioner could not accept them.
  • The importance of timing
    The sensitivity of information can decrease over time. Information which might be exempt today, might be able to be disclosed at a later date. In Decision 008/2016, the requester asked for drafts of a report a few days after the final version had been published, when the information was still very sensitive. This is one of the reasons we agreed that the drafts could be withheld.
  • Separate your requests
    There's nothing to stop you making information requests in other correspondence, but it's a good idea to keep your requests separate, particularly if you have a lot correspondence with an authority. This helps the authority keep track of your requests and means it's more likely you'll get a fast and accurate response. In Decision 012/2016, the authority was late in responding to a request. The delay was due to the high volume and complexity of the correspondence from the requester and the number of information requests he had made. The Commissioner has published "Tips for Requesters" to help them make the most of their right to know.

Decisions issued:

  • Decision 007/2016 John Eustace and Dundee City Council
    Mr Eustace asked the Council about a contract for the provision of advertising sites on bus shelters. The Council argued that disclosing the information would substantially prejudice both its and the contractor's commercial interests (section 33(1)(b) of the FOI Act). We disagreed and ordered the Council to disclose the information.
  • Decision 008/2016 Paul Hutcheon and the Scottish Police Authority (the SPA) and
    Decision 009/2016 Andrew Picken and the SPA
    Both of these cases involved requests by journalists for draft versions of an SPA report into Police Scotland's Armed Police Policy and for correspondence about the report. The SPA refused to disclose the information on the basis that disclosure would substantially prejudice the effective conduct of public affairs (section 30(c) of the FOI Act). We agreed that the drafts were sensitive and should be withheld. However, we ordered disclosure of some of the correspondence.
  • Decision 011/2016 Phil Conran and the Scottish Environmental Protection Agency (SEPA)
    Mr Conran asked SEPA about the Producer Compliance Schemes (PCSs) registered in Scotland under the Waste Electrical and Electronic Equipment Regulations 2013. This included the names of the PCSs who had failed to meet their obligations. SEPA refused to disclose the information. They argued that it was commercially sensitive and excepted from disclosure under regulation 10(5)(e) of the EIRs. We agreed.
  • Decision 012/2016 Mr X and City of Edinburgh Council
    Mr X asked the Council for information about advertising drums. While the Commissioner found that the Council had failed to respond to Mr X's request and request for review within the timescales set down by the Act or the EIRs, the Commissioner noted the high volume of requests the Council had received from Mr X.

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