Decisions Round-up: 26 to 30 November 2012



Key messages

  • Be alert for requests for review

Remember that an applicant does not have to specifically ask for a review ? all they need to do is express their dissatisfaction with how a request has been dealt with.  If you are in any doubt, you should contact the applicant to clarify, and if necessary give them assistance in making a proper request for review.  Paragraphs 5.2 and 5.3 of the Section 60 Code of Practice provide some helpful guidance.

  • The Commissioner cannot make judgements on accuracy of information released 

In Decision 187/2012, the arguments submitted to the Commissioner included criticisms of the analytical techniques used by SEPA and concerns about the veracity of the scientific data published.  Remember that the Commissioner's powers are limited to determining whether information is held, and if it should be released.  She cannot comment on the accuracy of information which is released.

  • Explaining complex or technical information can help the requester

In the same decision, the information requested was particularly complex and technical.  You might find that it helps an applicant if you provide some context or explanation, in instances where the information you are supplying is complicated or specialised.

  • Check that the exemptions/exceptions apply to the specific information you are considering

The relevance of most exemptions and exceptions depends on the particular information you have been asked for.  Always make sure you consider the content of the information itself, carefully, before deciding on an appropriate exemption or exception.  Misapplying exemptions or exceptions can prolong an investigation and take up resources unnecessarily, and slow down the legitimate release of information.

Summary of decisions

Mrs Ward received information from the Council in response to a request, but felt that she had not received everything.  She wrote to the Council expressing her dissatisfaction, asking why she had not received everything she had asked for ? but did not receive a satisfactory response.  When she appealed to us, the Council told our investigators that nothing in her correspondence comprised a request for review.  The Section 60 Code of Practice states that a requester need only express their dissatisfaction ? there is no need to specifically ask for a review.  It also advises that the authority has a duty to assist the requester in making a proper request for review.  In this case, however, the Commissioner found that Mrs Ward's correspondence did constitute a request for review.

  • Decision 187/2012 - Mr Neil Craig and the Scottish Environment Protection Agency (SEPA

Mr Craig asked SEPA for information relating to radium in particles found at Dalgety Bay, and SEPA told him that this information was on their website.  Mr Craig did not accept that the information he wanted was on the website, arguing that it did not contain evidence of the analysis he expected to see, a matter which caused him concern.  The Commissioner found that the SEPA website did publish all the information SEPA held in relation to Mr Craig's request.  She went on to clarify that she could not comment on the scientific methodology employed by SEPA, nor arbitrate in a dispute about the accuracy of any scientific claims made by the authority.

Mr Julien asked the Council for information about Old Drylaw House, and having received only some of the information he had asked for, he requested a review, giving some examples of the sort of information he wanted.  However, the Council's response to his review only dealt with these specific examples, rather than looking at the broader scope of Mr Julien's initial request.  The Council also wrongly applied a number of exceptions e.g. classifying correspondence between the Council and external third parties as "internal communications".  The Commissioner found that while most of the information was correctly withheld, where exceptions had been wrongly applied to some information, it should be disclosed.

Ms Ellis asked Grampian Police for copies of statements it held relating to a named individual's death.  The Police refused to disclose it, as it constituted the personal information of people who provided statements in an investigation into somebody's death.  The Commissioner agreed that the information should be withheld.  This is one of only a few decisions which has considered the exemption in section 34(2)(b)(ii) ? i.e. information held by the authority for the purposes of an investigation being carried out in order to make a report to the procurator fiscal, with respect to the cause of someone's death.

Mr Costello asked the Council for information about a particular contract.  The Council provided some information to Mr Costello, but withheld the remainder on the basis that it was subject to legal professional privilege.  Following an investigation, the Commissioner found that only some of the information withheld from Mr Costello was subject to legal professional privilege. Given that the Council disclosed the information which was not privileged to Mr Costello during the investigation, she did not require the Council to take any action.

Mr Milligan asked the Council for information relating to the content of signage at a voucher parking scheme area, and specific information relating to a parking penalty notice.  The Council did not respond to this request or to Mr Milligan's subsequent request for review.  The Council had refused to deal with the same request previously, finding it was vexatious, and so it did not respond to this request on the grounds that it was repeated.  The Commissioner agreed that the request was repeated, but found that the Council should have advised Mr Milligan that this was the case.

In this case, Ministers did not receive an information request from Mr Williams until over a month after he had made it ? this appears in part to be due to Mr Williams using the wrong email addresses.  However, the Commissioner found that the Ministers had failed to comply with FOISA as they did not respond to the request within statutory timescales, even after receiving the request.


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