Decisions Round-up: 30 October to 03 November 2017

We consider a rarely-used exemption which prevents harm to an authority's functions in an appeal published this week. We also have details of the 7 cases we resolved without the need for a decision notice. In other news, we have received a court appeal that challenges, for the first time, our decision that a request was vexatious.

Learning points:


  • Regulators need to be able to regulate
    We don't get many cases which focus on section 35(1)(g) of the FOI Act (harm to an authority's functions). Where we do, the case often looks at whether disclosing information would prevent regulators from carrying out their functions. In Decision 179/2017, we looked at whether disclosing information about complaints would prevent the Office of the Scottish Charity Regulator from carrying out its functions. In this case, we were satisfied disclosure would have this effect. As ever with these types of cases, it was helpful to go back to the regulator's founding legislation to see how they were expected to carry out their role and what sort of information they were - or weren't - expected to publish.



Decisions issued:


  • Decision 172/2017 Anna Hamilton and the Scottish Funding Council (the SFC)
    The SFC was asked about a contract with DLA Piper and for a copy of the report prepared by DLA Piper under the contract. The SFC initially told Ms Hamilton it didn't hold some of the information she had asked for - but, during the investigation, located the information and disclosed it to her. We were satisfied, by the end of the investigation, that the SFC had disclosed all of the information it held, but found the SFC had breached the FOI Act by telling Ms Hamilton it didn't hold information.


  • Decision 179/2017 Alasdair Tibbitt and the Office of the Scottish Charity Regulator (OSCR)
    Mr Tibbitt wanted to know about complaints that had been upheld against charities, including the names of the charities involved. During the investigation, OSCR disclosed summary information to Mr Tibbitt, without naming the charities. We agreed with OSCR that, given that the complaints did not lead to findings of misconduct, disclosing the names of the charities would cause real harm to their ability to protect charities against mismanagement and to protect charities from loss or mismanagement.


  • Decision 181/2017 Ms N and the University of Stirling (the University)
    Ms N asked the University about a review it had conducted on behalf of Action for Children. The University disclosed some information to Ms N but told her it did not hold other information she had asked for. We investigated and concluded that the University had disclosed all of the information it held.


  • Decision 182/2017 Brian Gourlay and West Dunbartonshire Council (the Council)
    The Council was asked for various pieces of information, including information on its practices and for copies of specific correspondence. The decision finds that the Council failed to respond to the request or to carry out a review in time.

Resolved cases


We also resolved seven cases in October without the need for a formal decision, after the requesters chose to withdraw their appeals. The reasons were:


  • Information was disclosed during the investigation
    In two cases, the authorities decided to disclose information they had previously withheld after an appeal was made to us.

    In another case, the authority disclosed some information to the requester which wasn't part of the original request, but which satisfied the requester.


  • Request too narrow
    In one case, we advised the requester that the scope of their request was so narrow that it didn't capture the information they wanted. They withdrew their appeal and decided to make a new, wider, request.


  • Badly written refusal notice
    Here, the authority had failed to explain why it considered that disclosing information would cost more than the maximum amount (£600). Once the requester understood why it would cost so much to comply, the requester withdrew.


  • Fees notice withdrawn
    An authority told the requester it would cost £96 to respond to a request for environmental information. The authority withdrew the fees notice after the requester appealed to us.


  • The FOI Act or EIRs?
    In a final case, the requester was unhappy that the authority had dealt with a request under the Environmental Information (Scotland) Regulations (the EIRs). We explained that the information he had asked for was environmental information and that the authority had no option but to respond under the EIRs.


New appeal to the Court of Session: was a request vexatious?

There have been a number of appeals against our decisions since the FOI legislation came into force, but none have looked at whether a request is vexatious under section 14(1) of the FOI Act. Last week, we received an appeal against Decision 152/2017, where we'd agreed with the Scottish Prison Service that an information request was vexatious. If a judgement is issued in this case, we'll let you know and will update our online guidance.


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