Decisions Round-up: 25 to 29 November 2019

One of the first things authorities should do upon receiving an information request is to check whether it's for environmental information, and should therefore be responded to under the Environmental Information (Scotland) Regulations (EIRs). In one case this week, even though the authority didn't hold the information, it failed to comply with the EIRs by failing to recognise the request as an EIRs request. We also have a learning point about making sure FOI procedures comply with equalities duties.


Learning points:

  • Check - is it environmental information?
    It's worth remembering that there are two different FOI regimes in Scotland - the Environmental Information Regulations cover environmental information (the clue's in the name!) and the Freedom of Information Act covers all other information. In Decision 168/2019, the authority didn't notice that the request was for environmental information when it responded to the request.

    In that case, the authority didn't hold the information, so the outcome would have been the same for the requester, but that won't always be the case. If an authority wants to charge a fee or refuse to disclose information, the outcome might well be different for the requester depending on which regime applies. We've published a summary of the differences between the two FOI regimes on our website.
  • Are FOI procedures Equality Act compliant?
    This is an issue which has come up recently - although not in relation to any of this week's decisions. Public authorities are subject to the Equality Act 2010, which means they must, among other things, make reasonable adjustments to their practices and procedures so that disabled persons can use their services. The FOI Act specifically recognises that the Equality Act might be relevant when responding to an information request - section 11 makes it clear that authorities may have to disclose information in different formats to comply with their Equality Act duties. However, the duty goes wider than disclosing information in various formats, so it's important for authorities to ensure that disabled persons can use their FOI rights, from providing advice and assistance, through to making information requests and requests for review. Further guidance on complying with the Equality Act when responding to FOI requests can be found in the Scottish Ministers' Section 60 Code.


Decisions issued:

  • Decision 168/2019 Dumfries and Galloway Council
    The Council was asked for the measurements taken to determine whether a road was suitable for refuse collections. We agreed that the Council didn't hold the information. However, the Council had failed to recognise that the request was for environmental information and should have been dealt with under the EIRs.
  • Decision 169/2019 Social Care and Social Work Improvement Scotland (the Care Inspectorate)
    The Care Inspectorate was asked for witness statements taken by investigators in connection with a care home investigation. The Care Inspectorate told the requester it did not hold witness statements. We agreed.

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