Decisions Round-up: 27 May to 7 June 2019

This week we have two cases which show that the way authorities have treated requested information in the past does not necessarily determine how FOI requests should be responded to. In one case, the information had been considered in private by the authority, but had to be disclosed, and in the other, despite the information having previously been made public, it could be withheld when it was requested.

We also have a decision which reminds authorities that, even if another access to information regime applies to a request, it may still be an FOI request, in which case the usual timescales and duty to advise and assist applies.


Learning points:


  • Information which has previously been public could still be properly withheld under FOI
    When deciding whether information can be disclosed, public authorities must consider the position at the time the request (or review request) was received. This may mean it's appropriate to withhold information which was once (but is no longer) in the public domain. In Decision 080/2019, due to a change in circumstance, planning information which had been published in the past was excepted from disclosure.


  • The Commissioner can't make decisions about the quality of information disclosed under the FOI Act
    The Commissioner can determine whether the public authority holds the information the requester has asked for. Where the information is held, he can't comment on its accuracy, or on apparent inconsistencies between that information and other information held by the authority. We explained this in Decision 081/2019.


  • Information considered in private by a local authority might still need to be disclosed under FOI
    The Local Government (Scotland) Act 1973 allows local authorities and their committees to choose to consider certain categories of information in private. It doesn't necessarily follow that such information will be exempt when asked for under FOI. The information will still need to meet all the tests laid down by a particular exemption or exception, at the time the request is made. See Decision 082/2019.


  • It's important to ensure that FOI requests are identified and actioned promptly
    A request to access information under another access regime may also be an FOI or EIR request. If so, it needs to be treated as such, and responded to within the required timescales. This didn't happen in Decision 083/2019, and the delay in responding meant the requester wasn't given advice and assistance on narrowing the scope of the request when it would have been of most benefit.

Decisions issued:


  • Decision 080/2019 Mr P and North Ayrshire Council
    Mr P asked for planning files related to Hunterston power station. After the appeal was made to the Commissioner, the Council disclosed some information, but with other information removed on the basis that disclosure would substantially prejudice national security.

    The Commissioner investigated and found that the Council wasn't entitled to withhold all of the information under this exception. The Commissioner also found that the Council failed to respond to the request within the required timescale.


  • Decision 081/2019 Mr P and Argyll & Bute Council
    The Council was asked for information on the road known as "the Briars" for specified dates. We investigated and found that the Council had carried out appropriate searches and didn't hold any other relevant information.


  • Decision 082/2019 Mr E and Orkney Islands Council
    Mr E asked about the status of two tracks on South Ronaldsay. The Council disclosed some information. It withheld other information, on the basis that disclosure would prejudice the confidentiality of proceedings. The Commissioner investigated and didn't agree with this conclusion for all the withheld information. He also found that some information, only identified during the investigation, should have been found earlier.


  • Decision 083/2019 Mr Anthony Jack and City of Edinburgh Council
    The Council was asked about the development of the St James Quarter. The Council initially handled Mr Jack's requests under another access regime, but then informed him that his request was manifestly unreasonable. We accepted this, but identified some failings in the handling of the requests.

    We ordered the Council to provide Mr Jack with advice and assistance to narrow the scope of his requests.


  • Decision 084/2019 Mr V and Scottish Social Services Council (SSSC)
    The SSSC was asked for external legal advice on the possibility of judicially reviewing a Fitness to Practice Hearing decision, and the reason the advice was sought. The SSSC withheld the information as it believed it was subject to legal professional privilege, and we accepted this.


  • Decisions 085/2019 to 088/2109
    These decisions relate to public authorities' failures to respond to requests within the required timescales.

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