Decisions Round-up: 30 May to 10 June 2016

Authorities don't just have to respond to requests within 20 working days, they are also required to respond "promptly" (under the FOI Act), or "as soon as possible" (under the Environmental Information (Scotland) Regulations 2004 (the EIRs)). This week we consider what that means, with a case where a response was given within 20 working days, but the requester did not think that was "as soon as possible".

Learning points:

  • Responding to requests "promptly" or as "soon as possible" doesn't necessarily mean "immediately"
    The FOI Act requires authorities to respond to requests "promptly", and the EIRs require requests to be responded to "as soon as possible". Decision 120/2016 is one where, although the authority had responded within 20 working days, the requester did not think the authority had responded to the EIRs request "as soon as possible". We acknowledged that authorities can have many demands on their time, and found that when determining whether a request was responded to "as soon as possible", it is relevant to take account of the authority's other core functions an authority has, and the resources it has at its disposal. In this case, we agreed with the authority, but always remember each case must be considered on its circumstances.

    To make sure your authority is responding on time, use our Self-Assessment Toolkit.


  • Explain why your response doesn't match the requester's expectations
    If an authority doesn't hold information, it doesn't have to explain why not. It may be good practice, though, to give the requester some explanation. We commented on this in Decision 117/2016.


  • Remember - a request for review doesn't need to contain the word "review"
    If a public authority hasn't responded to a request within the time allowed, and the requester then asks "When am I going to get a response?", this will usually count as a request for review. In Decision 118/2016, the authority overlooked this type of review request.


  • Personal information - make sure you identify everyone the information may be about
    While personal information might relate most directly to one individual, it may also relate to others who can be identified (for example family members of the main individual). Be ready, therefore, to spot the personal data of others. This was considered in Decision 121/2016.


  • Vexatious requests - evidence is vital
    If an authority wants to show that a request is vexatious, it will need evidence to support its decision. In Decision 122/2016, we weren't satisfied that the authority had provided evidence in relation to all of the grounds it was relying on - although we were satisfied that the request was vexatious on one of these grounds.


Decisions issued:

  • Decision 117/2016 Mr S and the Scottish Prison Service (the SPS)
    Mr S asked the SPS about prisoner requests for legal representation at disciplinary hearings. The SPS told Mr S that it did not hold the information he has asked for. Following an investigation, we accepted this.


  • Decision 118/2016 Martin Flanagan and Greater Glasgow and Clyde Health Board (NHS Greater Glasgow and Clyde)
    This request was for information about the sale of land at Lennox Castle. We found that NHS Greater Glasgow and Clyde failed to respond to the request and request for review within the required timescales, and ordered it to carry out a review.


  • Decision 119/2016 William Skidmore and Aberdeen City Council
    Mr Skidmore asked the Council for information about the Marischal Square development in Aberdeen. We found that the Council failed to respond to both the request and Mr Skidmore's request for review within the relevant timescales.


  • Decision 120/2016 Residents Against Turbines Scotland (RATS) and the Scottish Ministers
    The Ministers responded to RATS's request and provided some information about a planning appeal. RATS applied to the Commissioner for a decision on whether the Ministers had responded to the request "as soon as possible", as required by the EIRs. The Commissioner found that they had done so.


  • Decision 121/2016 Mr X and South Lanarkshire Council
    Mr X asked the Council for information about two people, one living person and one deceased person. The Council refused to confirm or deny whether it held any information. We found that the Council was entitled to do this.


  • Decision 122/2016 Mr N and South Lanarkshire Council
    Mr N made three requests to the Council, for information about his neighbour's dog and the Council's policy on dividing fences. The Council refused the requests as it considered they were vexatious. We didn't accept all of the Council's arguments, but agreed with one of them: that the requests were vexatious because they had the effect of harassing the Council.

    We also found that the Council failed to respond to Mr N's review within the 20 working day time limit.


  • Decision 124/2016 Alastair Tibbitt and Orkney Islands Council
    Mr Tibbitt asked the Council for information relating to the "Prevent" duty guidance for Scotland . This guidance provides advice for specified Scottish authorities on their duties under the Counter-Terrorism and Security Act 2015.

    The Commissioner considered arguments for withholding the information under three exemptions: national security; apprehension or prosecution of offenders, and; prevention or detection of crime. She found that the Council was entitled to withhold some of the information under the national security exemption, but did not accept that the remainder of the information was exempt.


  • Decision 125/2016 Alastair Tibbitt and North Lanarkshire Council
    This is a second case where Mr Tibbitt asked the Council for information relating to the "Prevent" duty guidance for Scotland. The Council informed Mr Tibbitt that the information was exempt from disclosure under the exemption for prejudice to the effective conduct of public affairs. During our investigation, the Council said it did not hold some of the information. It also wanted to apply the exemption for national security to the information it did hold.

    The Commissioner agreed that the Council was entitled to withhold this information, but it should have told Mr Tibbitt that it didn't hold the remaining information.


  • Decision 126/2016 Andrew Ewing and Stirling Council
    Mr Ewing asked the Council for emails about a planning application for a carbon-neutral dwelling. We found that the Council failed to comply with Mr Ewing's review within the required timescale - and ordered the Council to comply.

Resolved cases:

We also resolved four cases in May without the need for a formal decision. The summaries below provide insight into the less visible, but very important, role that resolution can play in improving relationships between authorities and requesters.

  • Information was disclosed during the investigation
    The main reason cases are resolved is that authorities disclose additional information to the requester during our investigation. We encourage this, as it ensures the requester can receive any disclosable information as early as possible. That happened in all four cases resolved in May. The requesters were happy with what was disclosed and withdrew their appeals.

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