Decisions Round-up: 26 to 30 November 2018

Whenever an authority plans to withhold information under FOI or the EIRs, in most cases it must consider the public interest in disclosure, and release the information if it is in the public interest to do so. This week's round up considers two cases where this consideration led us to different conclusions - one of which required the disclosure of information on a matter of national importance.

Learning points:

  • Disclosing information in the public interest
    Most FOI exemptions contain a "public interest" test, meaning that, even if an exemption applies, the information must be disclosed if disclosure is in the public interest.

    When it comes to police investigations, we recognise an inherent public interest in protecting the process by which the police carry these out. However, Decision 186/2018 is a rare example of a case where we found this was outweighed by the public interest in informing the public how an investigation on a matter of national importance was carried out, and the decision-making processes followed by Police Scotland and the Crown Office. Unusually, we found that the names of three witnesses should also be disclosed.

    One of the reasons why we felt the public interest in disclosure was so strong was that Police Scotland did not follow their usual procedures for recording investigations. Another was the importance in achieving clarity on certain matters, as Police Scotland initially issued confusing and contradictory responses to related requests.

    Decision 193/2018 also considered competing public interest arguments. Although we accepted there were reasons why disclosure would serve the public interest, we found, in this case, that this was outweighed by the strong public interest in maintaining the confidentiality of communications between a legal adviser and client.
  • Cost refusal? Remember the duty to advise and assist
    FOI requests which cost more than £600 to respond to can be refused by authorities. However, when refusing a request for this reason, authorities should always think about their duty to advise and assist the requester. Providing a breakdown of estimated costs, for example, can help requesters decide whether to submit a narrower request, and how to frame it (Decision 187/2018). 

Decisions issued:

  • Decision 186/2018 Mr S and the Chief Constable of the Police Service of Scotland
    Police Scotland were asked about their investigation into alleged illegal tallying of postal votes during the Scottish Referendum count. This led to Decision 111/2017, in which we required Police Scotland to carry out additional searches before we reached a decision on the withheld information. Police Scotland identified some additional documents, which they withheld, but argued that extending the search further would cost more that the £600 limit.

    After investigation, we agreed that Police Scotland was entitled to refuse to widen the search, because of the cost. We agreed that some of the information already identified was exempt from disclosure, but ordered Police Scotland to disclose some information.
  • Decision 187/2018 Mark Ellison and the Chief Constable of the Police Service of Scotland
    Mr Ellison asked for correspondence relating to issues or challenges in the investigation of "revenge porn" cases, and for copies of complaints about the handling of such cases. Police Scotland disclosed some information and withheld the rest. They found that providing copies of complaints would exceed the £600 limit.

    After investigation, we accepted these arguments, but found that Police Scotland had failed to provide reasonable advice and assistance to Mr Ellison.
  • Decision 188/2018 Tony Barry and the Scottish Ministers
    The Ministers were asked about the cost of changing the Scottish Government website address from to They provided some information but said they did not hold a full breakdown of costs. After investigation, we accepted that the Ministers had disclosed all the information they held.
  • Decision 189/2018 Ms D and North Ayrshire Council
    Ms D asked for information about road defect notifications. We found that the Council failed to respond to her request and review request within the 20 working day timescales.
  • Decision 190/2018 Argyll and Bute Council and Scottish Water
    Scottish Water was asked for information about an invoice issued to Argyll and Bute Council. We found that it failed to respond to the request and review request within the 20 working day timescales.
  • Decision 191/2018 Mr H and Scottish Water
    Scottish Water was asked about improvement works at Milngavie Reservoirs. It provided some information and told Mr H that it did not hold other information. After investigation, we accepted that Scottish Water had carried out appropriate searches and had disclosed all relevant information.
  • Decision 192/2018 Mr R and Fife Council
    The Council was asked for its retention policy for maintenance records. We found that it failed to respond to Mr R's request for review within the required timescale.
  • Decision 193/2018 Ms R and East Lothian Council
    Ms R asked for the review of the governance arrangements for Musselburgh Joint Racing Committee. The Council advised that the information was covered by legal professional privilege. During our investigation, it disclosed some information but withheld two parts which Ms R wanted to see.

    After investigation and after considering all public interest arguments, we accepted that this information was exempt from disclosure.

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