Decisions Round-up: 26 to 30 October 2015

Public authorities have a legal duty to provide advice and assistance to people who have made, or who want to make, FOI requests. There are two learning points this week about advice and assistance, and some pointers for authorities about understanding both the information and the request before responding.

Key messages:

  • Be prepared to justify any claim that you don't hold information
    When a case is appealed, authorities should be able to provide us with a full explanation of any searches carried out, along with evidence of the outcome of these searches. You should also be able to explain how you would record and store any relevant information. OSCR was able to do this effectively in the investigation which led to Decision 161/2015.
  • Make sure you understand the request and the information fully before you respond
    It's important to have a reasonable understanding of what the requester's looking for before responding. Otherwise, information may be overlooked or - as happened in Decision 163/2015 - the requester may be given information they didn't actually ask for. These can be equally frustrating for the requester.

    It's also important to have an accurate understanding of the information and its context when you respond. There's no point, for example, telling a requester that they can already access a report if it isn't actually published. This happened in Decision 162/2015.
  • Advice and assistance: explaining the response
    Providing explanation alongside an FOI response will often help a requester to understand your position. In some cases it may even be a necessary requirement under the duty to advise and assist. In Decision 162/2015 a public authority didn't provide full and accurate details to allow the requester to find information which was in the public domain. In such situations we'd usually expect an authority to help e.g. by giving a weblink to online information.
  • Give advice and assistance when a requester asks for their own personal data
    Another aspect of giving adequate advice and assistance is helping requesters when they ask for their own personal data under FOI. You can (and should) refuse to provide such information under the FOI Act, but under the duty to advise and assist you should go on to handle the request under the DPA, without waiting for a separate subject access request. We found that the public authority didn't do this in Decision 163/2015.

Decisions issued:

  • Decision 161/2015 Applicant A and Office of the Scottish Charity Regulator (OSCR)
    Applicant A asked OSCR for the number of referrals or complaints made to it by Police Scotland or other bodies about charity events at a specified address. OSCR informed Applicant A that it did not hold the requested information, which we accepted after an investigation.
  • Decision 162/2015 Mr Robert Trybis and Argyll and Bute Council
    Mr Trybis asked for information about a proposal to sell Castle Toward. The Council informed him that some of the information he was seeking was held in papers presented to Councillors and was already accessible to him. The Council did not provide details to allow him to locate and access these papers. We found that the Council was wrong to inform Mr Trybis that all of this information was already accessible to him. Where information was accessible, we found that the Council had failed to provide Mr Trybis with reasonable advice and assistance as to how to access it.
  • Decision 163/2015 Mr P and Borders Health Board (NHS Borders)
    Mr P asked NHS Borders for information relating to his treatment. NHS Borders withheld some information because it was Mr P's own personal data. It explained that the personal data could be requested under the Data Protection Act. During our investigation, NHS Borders acknowledged that some of the withheld information did not actually fall within the scope of Mr P's request.

    We found that NHS Borders should have considered the scope of the request more carefully before responding to Mr P and (with a view to providing him with reasonable, relevant advice and assistance) should have considered more carefully the implications of the information being his personal data.

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