Decisions Round-up: 31 August to 4 September 2015

It may seem obvious, but it's surprising how often we see cases where an authority has applied an exemption to information that it doesn't even hold. There are two featured in this week's round-up. We also have details of the cases that we resolved last month without the need for a decision - including one where an authority tried to charge £100 for a four page document...

Key messages:


  • Remember that disclosing information under FOI means putting it into the public domain
    Decision 138/2015 involves a request by a company which had been appointed as the administrator of another company. While the administrators had a particular interest in the information, we had to take account of the fact that any information disclosed under FOI would be disclosed into the public domain, and not just to the administrators. Disclosing the information in this way would have harmed a third party's commercial interests.


  • Make sure you actually hold information before refusing to provide it
    This seems to have become a regular feature in our round-up. Unless you're using the neither confirm nor deny provisions in section 18 of the Act (see next week's round-up for more on these), you need to tell the requester whether you hold the information they've asked for. You can't apply an exemption to information you don't hold. In Decisions 135/2015 and 137/2015, both authorities applied exemptions to information that wasn't held.


Decisions issued:


  • Decision 135/2015 Andrew Hamilton and the Scottish Social Services Council (SSSC)
    Mr Hamilton asked whether two individuals had attended certain courses and had obtained certain qualifications. The SSSC told Mr Hamilton that the information he had asked for was personal data, and was exempt from disclosure. We found that the SSSC had wrongly applied an exemption to information it didn't hold, but agreed that the information it did hold was exempt.


  • Decision 136/2015 Patrick Kelly and NHS Tayside
    Professor Eljamel, a consultant neurological surgeon, was suspended from his post at a Dundee hospital in 2014. Mr Kelly asked a number of questions about Professor Eljamel. NHS Tayside provided information in response to all but two of the questions. We were satisfied that NHS Tayside didn't hold information for one of the questions (the number of patients who died under the Professor's care). We were also satisfied that NHS Tayside was entitled not to confirm or deny whether it held other information.


  • Decision 137/2015 Oxton House Rest Home and Glasgow City Council
    Oxton House asked how much the Council paid private care homes for the "Step Up Service" for one individual. The Council initially told Oxton House that the information was exempt. At review, it told Oxton House that it didn't actually hold any information. We were satisfied that this was the case.


  • Decision 138/2015 Begbies Traynor Group PLC and Transport Scotland
    Begbies were appointed as administrators of a sub-contractor which had carried out work on the M8 White Cart Viaduct on behalf of Bam Nuttall Ltd. There was a dispute about the work the sub-contractor had carried out, and Begbies asked for a copy of the final account agreed between Transport Scotland and Bam Nuttall, which would detail the sums paid to the sub-contractor. We were satisfied that disclosure would harm Bam Nuttall's commercial interests; this is a specialist field where only a small number of firms have the necessary skills and experience to carry out the work. Disclosing the information would give Bam Nuttall's competitors an unfair advantage in future tendering exercises. 


Resolved cases:

In some cases, where it is appropriate, we will work to resolve cases without the need for a formal decision. We resolved 11 cases this way in August. Here are the main reasons the cases were resolved:

  • Fees notices waived - £100 for four pages is not a "reasonable" charge
    In three cases we resolved last month, public authorities waived the fees notices they had issued after the requesters appealed to us. In one of these cases, the authority wanted to charge £100 for a copy of a planning permission which was only four pages long. Requests for planning permissions are covered by the Environmental Information (Scotland) Regulations (the EIRs). The EIRs allow public authorities to make a reasonable charge for providing information, and only if they've published a schedule of fees.

    After we questioned the authority about the reasonableness of the charge, the authority provided the requester with a copy of the planning permission for free. We were concerned that the charges for this and other similar documents were inconsistent with the EIRs.  The EIRs are based on an EU Directive, so their charging rules trump any other charging rules a local authority may wish to apply. In resolving the case, the council agreed to review its schedule of charges to ensure that any fees comply with the EIRs.

    We are currently working with planning authorities on guidance on charging for planning documents. In the meantime, read our .


  • The authority provided redacted forms of audit reports
    Six cases involved requests made to the same public authority by journalists for copies of audit reports. The public authority initially withheld the reports in full on the basis that disclosure would harm the free and frank provision of advice or exchange of views. Following a discussion with an investigating officer, the public authority agreed to disclose the reports, subject to the redaction (blacking out) of personal data.


  • The information was no longer needed
    Here, the requester was concerned that wind turbines had been placed in schools. The council subsequently decided to remove the turbines from the schools, so the requester decided she no longer needed us to investigate.


  • The authority not only disclosed the information, but changed its policy
    One case involved a request to a council for the number of votes cast for each of the first, second and third placed candidates in an election for the Scottish Youth Parliament. The council disclosed the information- and confirmed that it would introduce a new policy to ensure that candidates didn't have to use FOI to find out how many votes they received.

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