Decisions Round-up: 31 October to 4 November 2016

The Environmental Information (Scotland) Regulations 2004 (the EIRs) cover more bodies than the FOI Act, e.g. housing associations. This week's DRU has a decision where a housing association thought a request was for non-environmental information, so they didn't have to respond. We found that the requested information was environmental, so the housing association did have to respond. We've also got advice about manifestly unreasonable and vexatious requests, and a reminder to think about the requester when applying the section 25 exemption.

Learning points:

  • Think about the requester before saying information is otherwise accessible
    The exemption in section 25 of the FOI Act allows you to withhold information if the requester can reasonably obtain it without asking for it under the FOI Act. Even if there's a charge for the information, the exemption can still apply. However, there will be cases where you still need to think about the requester's own circumstances. Decision 224/2016 related to information which was sold in hard copy but was also available to download free of charge. Most people could download it for free, but the requester (being a prisoner) could not. In these circumstances, we decided that he couldn't reasonably obtain the information and the authority should give it to him.

  • Manifestly unreasonable and vexatious requests - we need evidence
    The Commissioner needs evidence before she can make a decision that a request was manifestly unreasonable or vexatious. In Decisions 230/2016 and 231/2016, we weren't satisfied that the authority had given us enough evidence that the requests were manifestly unreasonable. As a result, we ordered the authority to respond to the review requests again, in a different way.

  • Respond on time!!
    The timescales for responding under the legislation are mandatory - if an authority's failed to respond on time, we have to find against them. Unfortunately, we had a number of cases this week (four) where the responses were late.

Decisions issued:

  • Decision 224/2016 Mr X and Scottish Courts and Tribunal Service (SCTS)
    Mr X asked SCTS for information about the Moorov doctrine, a rule of criminal evidence in Scots law. SCTS withheld the information on the basis that it was otherwise accessible: we did not accept this and required SCTS to provide the information.


  • Decision 225/2016 William Roddie and Stirling Council
    Mr Roddie asked for information about planning issues and property rights for land at Sauchieburn Estate. The Council failed to respond within the timescales set by the FOI Act.


  • Decision 226/2016 Melvich Primary School Parent Council and Highland Council
    This request was for information about the recruitment of head teachers. We found that Highland Council did not respond to the request for review within 20 working days.


  • Decision 227/2016 City of Brechin and District Community Council and Angus Council
    The Community Council asked for the values of specified areas of common good land. We found that there had been a failure by Angus Council to respond within the FOI Act's timescales.


  • Decision 228/2016 Gordon Stalker and Angus Council
    The Council did not respond to Mr Stalker's request for information about the lease of a caravan park within the FOI timescales.


  • Decision 229/2016 Andrew Hill and Ayrshire Housing
    Mr Hill asked Ayrshire Housing for information relating to the ownership and maintenance of an area of grassland. Ayrshire Housing did not believe the information was environmental, so it did not have to provide a response in terms of the EIRs. We found that some of the information requested by Mr Hill was environmental, so Ayrshire Housing should have responded in accordance with the EIRs. We ordered Ayrshire Housing to carry out a review and respond to Mr Hill.


  • Decisions 230/2016 and 231/2016 Company X and Dumfries and Galloway Council
    In two separate requests, Company X asked the Council for information about waste management. The Council informed Company X that both requests were manifestly unreasonable. In neither case were we satisfied that the Council had provided sufficient evidence to show that the request was manifestly unreasonable, so we ordered the Council to give a fresh response to each request for review. We also found that the Council failed to provide reasonable advice and assistance in both cases.

Resolved cases:

We also resolved seven cases in October without the need for a formal decision. The summaries below show some of the ways in which this was achieved.

  • Information was disclosed during the investigation
    In four cases, the authority disclosed all the information to the requester, who was then happy to withdraw their appeal.


  • The requester got a response
    In one case, where the requester's complaint was that they hadn't received a response to their review request, the authority issued a response and the requester withdrew.


  • The requester accepted that the information wasn't held
    In one case, we found during the investigation that the authority was correct to conclude that it didn't hold the information that had been asked for. We discussed this with the requester and they withdrew.


  • The requester agreed to make a fresh request
    There are occasional cases where issues relating to the clarity of the request for review mean that the requester's best option is to make a fresh request to the authority. This happened in one case in October, leading to the requester withdrawing their appeal to us.


Other cases closed:

We don't usually cover cases which we don't investigate because they are invalid, but we thought it might be useful to mention three cases which we couldn't validate this month. All three requests were for environmental information. In each case, the requester withdrew their request for review before appealing to us: this only came to light when we contacted the authority to let them know we had received the appeal.

Unlike the FOI Act, there is nothing which specifically says that review request can be withdrawn under the Environmental Information Regulations. However, we agreed that, as the review requests had been withdrawn, there was no right of appeal to us and we couldn't investigate.

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