Decisions Round-up: 5 to 9 August 2013

We published five decisions this week.


Key messages:

  • If you don't hold the information, you must tell the requester

If an requester asked you for something you don't hold, it is not enough to satisfy yourself that you do not hold it - you must give notice to the requester to that effect. Not only is this a legal requirement under the Act, but if you don't make the position clear, it could be misleading for the requester. In turn, this could lead to requests for review and appeals to the Commissioner which could have been avoided.

  • Be alert for information requests contained in wider correspondence

Requesters can ask for information as part of wider correspondence on other matters, for example in a complaint. It's important to spot these and deal with them in accordance with access to information laws. It is good practice to ensure staff dealing with correspondence and complaints have been trained on how to identify information requests, and know the policy and procedures for handling them. Requesters can also help authorities deal with their requests more effectively by keeping them separate for other correspondence.

  • It's not always obvious when information is personal information

It's easy to see that information such as an individual's name is likely to be their personal information. However, it can be possible to identify individuals from information which is less obviously personal information. For example, statistical data relating to a very small population or very individual-specific information, might be combined with other information already available to identify someone. In deciding whether individuals could be identified, the authority must consider the means a "determined" individual may use to do so and explain how they think identification will be possible.

  • Identify cost issues as early as possible

The authority may not always be able to deal with your request in the way you expect; what may seem a cost-effective way of providing what you've asked for may not, in the circumstances, prove to be cost-effective. For example, the authority may not record the information in the way you've anticipated. However, the onus is on the authority to identify cost issues as early as possible, and to provide you with advice and assistance to see what can be provided within the cost limit.

Summary of decisions:

Dr Harding asked for information about a pilot scheme relating to a matter he had complained about. The Board responded to other points in his correspondence, via their complaints process, but not to his information request. Following a review, Dr Harding appealed and the Board told us it did not hold the information Dr Harding was looking for. The Commissioner accepted this following investigation, but found that the Board should have told Dr Harding this was the case. Further, she commented that the Board's letter to Dr Harding led him to expect it to hold information on the pilot scheme.

Mr MacInnes asked for a list of disability-related expenditure accepted by the Council for the purposes of financial assessments over the previous 12 months, asking for any personal information to be redacted. The Council refused under section 38(1)(b) (personal information). Mr MacInnes appealed, believing that the information he'd asked for wouldn't contain personal information. The Commissioner accepted the Council's argument that the information Mr MacInnes requested related to a very small number of individuals, and to very specific personal circumstances. Even without their names, the information, combined with knowledge of people with disabilities in the area, would allow those individuals to be identified.

The Council's response to Mr Fox's request failed to reach him, so Mr Fox requested a review and, when no response was received to this, he appealed to us. The Council told our investigator that it had intended to respond to Mr Fox's request for review on the basis that they had already responded to his initial request, but they hadn't contacted Mr Fox to tell him this. During the investigation, the Council wrote to Mr Fox with a copy of the original response (which had gone astray), and asked him if he wanted to withdraw his request for review. However, the Commissioner found that this did not constitute a proper response to Mr Fox's request for review. As no review had been carried out, she ordered the Council to carry one out.

Mr McLean asked the SPSO for details of legal advice he had obtained in relation to his remit. The SPSO disclosed how often he had sought legal opinion, but withheld the content of that opinion, on the grounds that it was subject to legal professional privilege. The Commissioner accepted that the public interest favoured the information being withheld. She accepted that there is a public interest in the SPSO being publicly accountable, but that that wasn't strong enough to outweigh the public interest in enabling him to seek legal advice on how to carry out his functions without concern of its being publicly disclosed.

Dr Reddington asked the Board for information regarding augmentative and alternative communication systems. The Board provide some information but told him they didn't hold the rest - a position they upheld on review. During the investigation, the Board accepted it did hold more information, but that it would cost more than £600 to provide it. The Commissioner agreed, but found the Board should have told Dr Reddington this was the case. She ordered the Board to provide Dr Reddington with advice and assistance to see what could be supplied within the cost limit.


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