Decisions Round-up: 4 to 8 March 2013

We published six decisions this week.


Key messages:

  • Not responding is not an option

You must respond to a request for information, or a request for a review, within 20 working days.  If you fail to respond at all, this is essentially a refusal to comply with the legislation.  As the 20 working day time limit expires, the requester can seek a review from you, and if that too is ignored, they have the right to appeal to us.  Where this happens, the Commissioner can issue a legally enforceable decision compelling you to respond.  In the long term, this process is much more resource intensive for an authority ? and you will still in any case have to respond to the request.  If you are finding it difficult to respond within 20 working days, review how you are handling requests ? there is a wealth of good practice out there, and we can help put you in touch with authorities who have improved their performance in this area.

  • Information may not be held in the format you expect

When you ask for information, be aware that it may not be held in the way you have anticipated. While the authority has a duty to assist requesters, and consider your preferred format, it is not obliged to create new information to satisfy your request.  In this week's Decision 030/2013, creating information in the format which the requester asked for would be prohibitively expensive.  While not the case here, in many cases it may be possible for you to obtain some or all of the information you want to see if you can be flexible about format.

  • If you ask for clarification, respond where clarification is given

Where you have to seek clarification of a number of issues, it's always possible that the requester will only provide part of the clarification that you need.  Where this happens, you should go ahead and respond to the parts of the request which have been clarified, rather than not respond at all.

  • Ensure your staff can recognise FOI requests, and requests for review

This is a recurring theme in decisions round-up, because requests for information, and subsequent reviews, will not always be addressed to the authority's FOI practitioner.  All your staff should be able to recognise requests (and requests for review), and know what to do with them.

You should also encourage your staff to be vigilant to the possibility that requests (and requests for review) can be buried in wider correspondence on other matters.  Even where the volume of correspondence is so high it presents challenges, or the request might have been more clearly framed, the authority still has a duty to respond.  Many authorities cover this in staff induction and refresher training, which is a good way of addressing the issue.

Summary of decisions:

In both these cases, Mr Hutcheon's initial request, and subsequent request for review, went unanswered by the Scottish Government.  In the case of 028/2013, following appeal to us, Ministers cited work pressure as the reason for this failure, but said a number of learning points had been taken on board which should mean that other cases could be responded to more quickly.  In the case of 029/2013, Ministers did not respond to our investigator's invitation to comment on the appeal.  In both cases, the Commissioner requires the Ministers to carry out a review of their handling of the initial requests and respond to Mr Hutcheon.

Mr Goldie asked for statistical information about the treatment of psoriasis patients with Biologics (a type of pharmaceutical).  The Board initially claimed it did not hold the information, but on review advised it was held in over 73,000 individual patient record,s but that it would be too costly to audit these to extract the information.  Mr Goldie appealed, as he expected the information to be held in summary form, e.g. by the Director of Pharmacy.  The Board explained the only way to provide this information would be if it was held on an electronic prescribing system, which it did not have.  The Commissioner accepted this.

Mr Collins asked the Council for a range of information, including CCTV footage, from 2011, and copy of a form from July 2005.  The Council responded a number of months later (well after the 20 working day time limit) asking for clarification.  Mr Collins gave some of the clarification sought, but the Council did not then go on to respond to him.  When asked for a review, the Council advised it did not hold any of the information.  The Commissioner accepted this when the case was appealed to us, but found that the Council had not complied with the statutory timescales set out in legislation.

Ms Steele's request for a review was not responded to.  When she appealed to us, our investigator discovered that the request for review had formed part of an ongoing correspondence with the Patient Relations Manager, who had not recognised as a request for review, and so had not passed it onto the FOI officer.  The Board has recognised these procedural failings and taken steps to remedy it, and has since responded to Ms Steele's request for review.

Mr Williams did not receive a response to his request for information, nor to his subsequent request for review.  When the case was appealed, Ministers advised our investigator that the request coincided with a high volume of correspondence about a similar request, which had already been answered.  Ministers had also put measures in place to manage correspondence received from Mr Williams, and this may have contributed to the request being missed.  Ministers have outlined steps they are taking to minimise the risk of future requests being overlooked, and have responded to Mr Williams' request for review.

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