Decisions Round-up: 4 to 8 April 2016



In this week's Round-up we update you on the outcome of a case that went to the Court of Session. We also look at a case which highlights the importance of fully considering all aspects of an exemption/exception before applying it to withhold information.

This week also features the learning points from the cases we resolved without the need for a formal decision in March.

Court of Session Opinion:

On 22 March, the Court of Session issued its Opinion in the case of WF Ian Beggs v Scottish Information Commissioner.

The case involved a request made by Mr Beggs to the Police Investigations and Review Commissioner (PIRC). PIRC withheld information under the exemptions in section 30 (Prejudice to effective conduct of public affairs) and 38 (Personal information) of the FOI Act. We investigated and agreed that the exemptions applied.

Mr Beggs appealed to the Court of Session, arguing that the Commissioner had failed to give adequate reasoning and had misapplied the exemptions. The Court of Session disagreed and upheld the Commissioner's decision in full.

One particularly interesting matter covered by the judgement is the extent to which a public authority responding to a request is required to seek the views or consent of individuals named in the requested information.

The Court's Opinion can be read here.


Learning points:

  • Take care when photocopying documents
    If you're photocopying a document, do make sure the photocopy captures all of the information you want to disclose. Seems obvious, but in Decision 075/2016 we found that due to the way the records had been photocopied, some of the information had not been captured. As part of the investigation we ordered the authority to disclose complete copies of the records in question to the requester.
  • When applying an exemption/exception, make sure all the tests can be met
    It's really important, when applying an exemption or exception to withhold information, that you can satisfy the Commissioner that all of the tests are met. In Decision 076/2016, the authority applied an exception which, as well as being subject to the public interest test, contains four different tests. In this case not all of the tests for non-disclosure were met and we ordered the authority to disclose the information.
  • Advice and assistance - tell the requester what information you hold
    Decision 076/2016 also looks at the duty to give advice and assistance. In this case, the requester asked for correspondence between two individuals. The authority asked the requester to specify the subject areas he was interested in, so he could find the information more easily. In response, the requester narrowed his request twice, commenting that, as he did not know the topics individuals had corresponded about, he had had to guess the subject areas. Whilst responding to the request, the authority became aware of other subject areas which would have fallen within the scope of the requester's earlier requests. The Commissioner commented that it would have been helpful for the authority to have told the requester about the additional information it held to allow him to make a new information request.

Decisions issued:

  • Decision 075/2016 Mr G and West Lothian Council
    Mr G asked the Council for information about lair and interment records. The Council disclosed some information and withheld the remainder on the basis that it was personal data and disclosure would breach the first data protection principle. We agreed with the Council even though, given the age of some of the information, it was possible that some of the individuals named in the documentation would now be deceased.
  • Decision 076/2016 Rob Edwards and the Scottish Ministers
    Mr Edwards asked the Ministers for correspondence between the Prince of Wales and Alex Salmond while he was First Minister. The Ministers disclosed some information to Mr Edwards, but withheld information under regulation 10(5)(f) of the EIRs which, they believed, would prejudice Prince Charles' interests as the person who provided the information. We ordered the Ministers to disclose the remaining information to Mr Edwards, noting that not all of the "tests" required for regulation 10(5)(f) had been met.

Resolved cases:

In some cases we will resolve cases without the need for a formal decision. Resolution can play an important role in improving relationships between requesters and authorities.

We resolved nine cases this way in March. Here are the main reasons these cases were resolved:

  • Information disclosed during the investigation
    In four cases, following our intervention, the public authorities agreed to disclose all of the withheld information and the requesters were happy to withdraw their applications.
  • The requester accepted that the public authority didn't hold the information
    Following an investigation, we were satisfied that the public authority didn't actually hold the information the requester had asked for. The requester accepted our findings without the need for a formal decision.
  • Was the information environmental information (1)?
    In one case, a requester was unhappy that the authority had responded to his request under the Environmental Information (Scotland) Regulations rather than under the FOI Act. We were satisfied that the information was clearly environmental and the requester accepted our advice.
  • Was the information environmental information (2)?
    In this case, the public authority responded to the request under the FOI Act. When it came to us on appeal, we told the authority it was environmental information. Although the authority disagreed, it disclosed the information to the requester during the investigation and the requester withdrew their application.

    It's worth noting, however, that had the public authority recognised that the information was environmental, the time and work involved for both us and the authority would have been reduced - and the requester would probably have received the information more quickly.
  • The information couldn't be disclosed into the public domain
    A requester asked a local authority for her deceased mother's care home notes. We explained that disclosing information under the FOI Act would mean putting the information into the public domain. Given the sensitivity of the information, the requester agreed that FOI was not the appropriate route to try to access the information and withdraw her appeal.
  • The requester accepted that responding would incur excessive costs
    A requester made a wide-ranging request. The authority told the requester it didn't have to comply because it would cost more than £600 to do so (section 12 of the FOI Act). We investigated and were satisfied that the authority didn't have to comply with the request. The requester withdrew the application and we advised them to contact the authority to discuss making a new, narrower, request.

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