Decisions round-up: 25 to 29 November 2013

 We published 11 decisions this week.

Key messages:

  • If in doubt, ask

You should make sure you interpret requests in a reasonable way. If you are in any doubt about what the request covers, e.g. the timescale covered, contact the requester and clarify this with them, rather than interpret it in a restrictive way.

  • Ask for recorded information

When formulating a request for information, try and make sure you ask for recorded information. If you have asked for advice, rather than recorded information, then it's unlikely to be subject to FOI legislation. Similarly, hypothetical questions are not requests for recorded information. However, public authorities have a duty to advise and assist you, so don't hesitate to contact them for help in formulating your request.

  • Make sure you identify all the information covered by a request

When you are conducting searches for information, make sure that you are covering all parts of a request. If you don't, you may miss something which falls within the remit of the request. This can lead to an avoidable appeal to the Commissioner, which may mean you have to repeat searches to locate what has been missed.

  • Check complaints for information requests

It's not unusual for a complaint to an authority to include an information request. These must be dealt with in exactly the same way as if they were received under separate cover. Ensure the staff who deal with your complaints correspondence know how to spot an information request, and what your procedures are for dealing with them.

  • Keep it separate!

If you are engaged in protracted correspondence with an authority, keep information requests separate wherever possible, so that they can be more easily identified. Similarly, if you make a complaint, consider making any associated information requests separately rather than including them within the text of your complaint. Embedding requests within voluminous or complex correspondence doesn't make them invalid, but it may reduce the authority's ability to deal with them effectively. Keeping them separate may result in a quicker response. Check out our "Tips for Requesters" for further advice.

  • Might the information be the personal information of the requester?

If you are asked for information about an investigation focussing on one person, it makes sense to check if it is their own personal data. A requester's own personal data is exempt under the FOI Act, but the requester may make a subject access request for it under data protection laws.

  • Decisions can only be reached on evidence provided

 When we ask for submissions to enable us to investigate an appeal, it is in your interests to provide us with what we ask you for. While you will always be given the opportunity to provide submissions to support your case, ultimately we have to come to a decision based on the facts we have to hand. Ensuring you give us everything we need may increase the likelihood of a decision in your favour.

  • Have we made any recent decisions on the same request?

It is always worth checking our decisions database to see if there have been any recent decisions relating to the same authority on similar or identical requests. If the circumstances have not changed and the authority is making the same arguments, it's likely the Commissioner will come to the same conclusion.

Summary of decisions:

Mr G made a complaint to the SPS, within which he asked for a list of work party vacancies and details of relevant conditions (e.g. eligibility criteria). The SPS responded to Mr G's complaint, but not to his information request. When Mr G asked for a review, the SPS advised him they did not hold the information he had asked for. During the investigation, the SPS confirmed that the information was held on a spreadsheet which was updated every day and that the information Mr G had asked for had been overwritten. The Commissioner found it likely that the information was held at the time of the request, but that it was impossible to substantiate this. She accepted that the SPS made the list available on a weekly basis to prisoners and that it was reasonable to conclude that Mr G knew this.

Mr N asked the Council for information about Breadalbane Academy school fund. It was an identical request to one made in 2012, which was the subject of a decision by the Commissioner, although the timescales were slightly different. In 2012, the Commissioner found that the Council was correct to advise Mr N that the information was otherwise accessible to him. This time round, the Council claimed it did not hold all of the information Mr N was asking for. On appeal, we asked for submissions from the Council on its searches, but it did not respond to all of our requests so we came to a decision based on what the Council did provide. The Council's submissions did not satisfy us that adequate searches had been carried out, so the Commissioner required the Council to undertake further searches (but not in relation to information which was already covered by the earlier decision).

Mr Cooney faxed his request for information to Ministers, and when he received no reply he faxed them again asking for a review. When Ministers failed to respond again Mr Cooney appealed to us. Ministers claimed they had not received any correspondence from Mr Cooney, but our investigator was able to confirm that the correct fax number had been used. Ministers apologised and responded to Mr Cooney's request for review.

Mr Carrell asked the SPA (then the Scottish Police Services Authority) for information about links between the SPA and the Maldives Police. The SPA provided some information with personal data redacted and claimed it did not hold the rest. On appeal, the Commissioner accepted the SPA's position.

Mr Milne asked the Police for information relating to an alleged incident at the Menie Estate in Balmedie in October 2010. One of Mr Milne's requests asked for information "since 2010", which Ministers interpreted as meaning from 1 January 2011. However, given Mr Milne had mentioned a newspaper article from October 2010 in his request for review, the Commissioner found that the Police had not interpreted his request in a reasonable way, and told them to search again, this time covering 2010.

Mr Milne also asked how he should proceed if he wanted the theft case re-opened. The Police claimed this was not a request for recorded information, and the response would depend on the specifics of the case. The Commissioner agreed that this was a request for advice rather than for recorded information.

Mr Kelly sought information about a housing development, by way of a series of questions relating to, e.g., site inspection and assurances from the builders. The Council answered some of his questions, but claimed it did not hold information for others - a position it upheld on review. When Mr Kelly appealed to us, we asked the Council for details of the searches it had undertaken. This led to it disclosing further information to Mr Kelly. The Council also explained that some of the information Mr Kelly has asked for had been "lost" partly due to staff leaving and partly due to an office move.

Mr Boyle asked the GTCS for information about investigations it had undertaken, and conclusions it had reached. The GTCS responded with explanations of some if its processes, and stated it had no further information to share with him. During the investigation which followed Mr Boyle's appeal to us, the GTCS concluded that it did hold further relevant information, but that it was entirely Mr Boyle's own personal information. The GTCS claimed the information was exempt as a result, a position which the Commissioner agreed with. The Commissioner noted that the GTCS's failure to tell Mr Boyle of this fact at an earlier stage occurred within the context of a considerable volume of complex and overlapping correspondence from Mr Boyle.

Mr O'Sullivan asked Ministers for information about David Coulthard's participation in a recent Road Safety Scotland campaign, specifically information about the fees and any tax paid. The Ministers withheld most of the fee information on the grounds it was personal data, and advised Mr O'Sullivan that Mr Coulthard's tax affairs were not their responsibility. The Commissioner concluded that Mr O'Sullivan's legitimate interests in the fees paid to Mr Coulthard outweighed Mr Coulthard's his legitimate interests, rights and freedoms in this case, and ordered release.

On both occasions, Mr Sabato's requests and requests for review went unanswered by the Board. Both decisions found that the Board failed in its duties under FOI and ordered the Board to respond to Mr Sabato's requests for review by 6 January 2014.

Mr Birt asked Ministers for the legal advice obtained by the Scottish Government relating to the position of an independent Scotland applying for EU membership. The same request, but made by a different requester, was the subject of a recent decision in October 2013[1], when the Commissioner upheld Minister's decision to withhold it. The Commissioner reached the same conclusion in relation to Mr Birt's request.

[1] Decision 219/2013 Ms Catherine Stihler and the Scottish Ministers


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