Decisions Round-up: 25 to 29 June 2018

Information which is appropriate for release under FOI should be disclosed as soon as possible. Unfortunately, however, we often see cases where information isn't released until an appeal is made to us. This week's round-up highlights one of these cases, and reminds authorities that disclosure during our investigation may still result in a critical decision from the Commissioner…

Learning points:


  • Requesters: remember you have six months to appeal to us
    If an FOI requester is unhappy with the outcome of a request, they can ask the authority to review the response. Authorities have 20 working days (roughly one month) to respond to a request for review. If they are late, the requester can appeal to us soon as the 20 working days are up. In Decision 084/2018, the requester waited four months to appeal to us. Appeals need to be made to us within six months of a review being carried out (or six months of when the review should have been carried out). Any requesters who are unsure about timescales will find our response calculator helpful.


  • Disclosing information during our investigation won't always get authorities off the hook
    Public authorities often decide to disclose information during our investigation. While we welcome this - and while it can lead to a case being resolved without the need for a formal decision - it doesn't mean we'll find in the authority's favour. If an authority discloses information but, as in Decision 085/2018, can't or won't explain why information which was previously considered to be exempt is no longer exempt, we will find that the information should have been disclosed at an earlier stage and that there has been a breach of FOI.


  • Pre-planning application information isn't automatically excepted from disclosure
    Those who are preparing to submit a planning application will often seek advice from a local authority before making their submission - particularly where the planning application is complex, unusual or contentious. Over the years we've issue a number of decisions about whether information about the pre-planning process can be disclosed. As with Decision 086/2018, it depends. Pre-planning information is often sensitive, but that doesn't mean it can automatically be withheld. Although this decision focussed on the "commercial confidentiality" exception in the EIRs, most of our decisions on pre-planning information have focussed on the "third party interests" exception and a number of them appear in our guidance.


  • Third party views
    Information requests often cover information an authority has received from a third party, such as a service users, other public bodies, or contractors. In some cases it will be necessary for the authority to consult with the third party on whether the information should be disclosed (the Section 60 Code has helpful guidance on this). However, it's the authority's responsibility to determine whether information should be disclosed or withheld. The views of the third party can be taken into account, but the third party can't dictate the response.


Decisions issued:


  • Decision 084/2018 Mr Y and the Scottish Ministers
    The Ministers were asked for briefing papers sent to/from certain individuals about unconventional oil and gas (fracking). We found that the Ministers failed to respond to the request for review in the timescale in the EIRs.


  • Decision 085/2018 Derek Jackson and Scottish Fire and Rescue Service (SFRS)
    The SFRS were asked for a draft report prepared as part of a job evaluation process. The SFRS originally refused to disclose the report, but then disclosed it during our investigation. The SFRS did not explain why the report could now be disclosed when it had originally been withheld. We found that it had breached the FOI Act by not disclosing the report when it received the request.


  • Decision 086/2018 Company A and Highland Council
    This case dealt with the potential development of a UK Space Agency launch site at various locations in Sutherland. We agreed that information which would identify the possible launch sites was excepted from disclosure under the EIRs, but that the other information should be disclosed. The Council disclosed the other information during the investigation.


  • Decision 087/2018 Mr F and the Scottish Ministers
    The Scottish Ministers were asked for emails held in the Deputy First Minister's sent items folder which contained the word "FOI" over a set period. This decision found that the Ministers failed to respond to the request - and request for review - within the FOI timescales.


  • Decision 088/2018 Hugh Watson and the Scottish Public Services Ombudsman (SPSO)
    Mr Watson asked the SPSO about a complaint he had made. The SPSO withheld the information - it was either Mr Watson's personal data (and exempt under section 38(1)(a) of the FOI Act) or disclosing the information would breach the Scottish Public Services Ombudsman Act 2002 (and exempt under section 26(a) of the FOI Act). We agreed with the approach taken by the SPSO.


  • Decision 089/2018 Mr W and Scottish Borders Council
    Mr W asked the Council about a specific planning application. Mr W didn't believe the Council had disclosed all the information it held to him, so appealed to us. We investigated and concluded that the Council had in fact disclosed all of the information it held.

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