Decisions Round-up: 27 June to 1 July 2016

We know that a request for information can be vexatious under the FOI Act, but a decision this week confirms that a request for review can also be vexatious, even if the initial request wasn't.

We also have three decisions this week which involved requests under the Environmental Information (Scotland) Regulations 2004 (the EIRs). In two of these cases, the authorities missed this, and did not apply the EIRs.


Learning points:

  • Requests for review can be vexatious - even if the initial request wasn't
    Section 21(8)(a) of the FOI Act isn't used often. It allows authorities to refuse to carry out a review if the request for review is vexatious. (Although a review doesn't have to be carried out, the authority must tell the requester that it's not going to carry out a review and tell them about their appeal rights.) In Decision 133/2016, we agreed that the request for review was vexatious. The decision makes it clear that, when considering this, authorities should consider the same factors as they would in deciding whether a request is vexatious under section 14(1).


  • Respond to requests for environmental information under the Environmental Information Regulations (the EIRs)
    Three of the five decisions we published this week involved requests for environmental information. Unfortunately, in two of them (Decisions 129/2016 and 132/2016), the public authority didn't treat the request as one for environmental information until the case came to us on appeal. There are differences between the FOI Act and the EIRs, e.g. on timescales, charging regimes, etc., so it's important to make sure you use the right one.


  • Don't forget how wide the exception in regulation 10(5)(b) of the EIRs is
    Two of the decisions we issued this week look at the exception in regulation 10(5)(b) of the EIRs - and show just how wide that exception is. Authorities don't have to make environmental information available if disclosure would prejudice substantially the course of justice, the ability to receive a fair trial or the ability of a public authority to conduct a criminal or disciplinary inquiry.

    In Decision 129/2016, we agreed the authority could apply the exception to information about their investigations into illegal shellfish diving, while in Decision 131/2016, we agreed that the exception applied to legal advice.


Decisions issued:

  • Decision 129/2016 Dominic Kennedy and Police Scotland
    Mr Kennedy asked Police Scotland for communications with the Health and Safety Executive and with Marine Scotland about criminal shellfish diving. During the investigation, the Police accepted that the information was environmental information and that the request should have been responded to under the EIRs. We were satisfied that a lot of the information could be withheld under either regulation 11(2) (third party personal data) or regulation 10(5)(b) (substantial prejudice to the ability of a public authority to conduct a criminal inquiry, etc.).


  • Decision 130/2016 Mr A and the Scottish Prison Service (the SPS)
    Mr A asked the SPS about its decision to withdraw access to IT facilities for prisoners from the Learning Centre at HMP Edinburgh. The SPS initially failed to locate all of the information falling within scope of the request. When the information had been located, we found that SPS had wrongly withheld some of it under the third party personal data exemption (section 38(1)(b)) and the exemption for substantial prejudice to the maintenance of security and good order in prisons (section 35(1)(f)).


  • Decision 131/2016 James Wight and North Lanarkshire Council (the Council)
    This involved a request for legal advice received by the Council about Mr Wight's land. The Council correctly responded to the request under the EIRs. We agreed it was entitled to withhold the information under regulation 10(5)(b) (substantial prejudice to the course of justice, etc.).


  • Decision 132/2016 James G Findlay Ltd (the Company) and Dumfries and Galloway Council (the Council)
    The company asked the Council about the award of contracts for traffic management works. The Council gave the company some information, but said it didn't hold other information. Following an investigation, we were satisfied that the Council didn't hold the other information. But we noted that the request was for environmental information and should have been responded to under the EIRs.


  • Decision 133/2016 George Watson and Dumfries and Galloway Council (the Council)
    Mr Watson asked the Council for copies of communications they had had with our office. The Council originally told Mr Watson that it didn't hold the information. Mr Watson asked for a review, but, the Council concluded that the request for review was vexatious, meaning that it didn't have to carry one out (section 21(8)(a) of the FOI Act). We agreed. The effect of Mr Watson's request for review was to harass the Council in general and, in particular, a named member of staff.

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