Decisions Round-up: 5 to 9 November 2012

We published six decisions during the week. 


Key messages:

  • If you don't hold information, can you tell the requester where they might access it?
    If an authority doesn't hold information, but it is aware that another authority is likely to hold it, it is good practice to refer the requester on to that body. This was a feature of Decision 176/2012, where the authority provided contact details for Scottish Water, which it considered would be likely to hold the information sought.

  • If clarification is required, seek it quickly
    Where an authority needs further information to respond to a request, it should seek that clarification as quickly as possible. Paragraph 1.5 of the Section 60 Code of Practice provides guidance on when it is appropriate to seek clarification in relation to requests. (Decision 177/2012)

  • Information prepared by a lawyer will not necessarily be legal advice
    Think carefully about the nature of the information at hand when assessing whether it is covered by the FOI Act's section 36(1) exemption applying to legal advice. In decision 180/2012, we found that, while the information had been prepared by a lawyer, it did not constitute "legal advice". We nevertheless found in this case that the information fell within the scope of section 36(1) as a result of litigation privilege. Our briefing on the section 36 (confidentiality) exemption provides further guidance.

  • Consider each request independently
    Treat every FOI or EIR request on its own merits. In Decision 175/2012, a council failed to respond to a request for information, or carry out a review, because it had separately sent the information sought to another person at the requester's address. In such circumstances, while you might consider asking whether the requester wants to withdraw their request, you should otherwise view the request independently and respond accordingly.

  • Getting your response right initially will reduce the burden later
    Take time to fully understand the scope of the request, search appropriately for information, and properly consider any reasons for non-disclosure. This way you substantially reduce the likelihood of an appeal to the Commissioner. In Decision 179/2012 the authority identified a large amount of information only following an appeal, and subsequently released all of the requested information, withdrawing its reliance on the EIR exceptions.

Summary of decisions:

  • Decision 175/2012 - Mr Paul Bova and Highland Council
    Mr Bova requested correspondence relating to a local development. The Council failed to respond, having separately sent information to an individual living with Mr Bova, in response to a separate request. The Commissioner found that, by failing to respond, the Council had failed in responsibilities under FOI and the EIRs.

  • Decision 176/2012 - Unison Scotland and the Scottish Ministers
    Unison was concerned that the information provided in response to its request for PFI business cases did not represent all the information held. The Commissioner's investigation focussed on the measures undertaken to identify relevant information, and included a meeting with Scottish Government officials to discuss the searches undertaken. Following this activity, the Commissioner concluded that no further relevant information was held.

  • Decision 177/2012 - Mr John Ferguson and Glasgow City Council
    The Council considered that further information was required before it could respond to Mr Ferguson's request. However, a request for clarification was not sent until after the 20-working day response timescale had expired - and also after Mr Ferguson had submitted his request for review. A response to Mr Ferguson's request for review was provided during the Commissioner's investigation.

  • Decision 178/2012 - Ms Teresa McNally and Forth Valley NHS Board
    The Commissioner concluded that the Board was right to withhold information relating to one of its non-executive directors, on the grounds that the information was personal data, and disclosure would breach one of the data protection principles.

  • Decision 179/2012 - Mrs Elizabeth W Bell Horsburgh and the City of Edinburgh Council
    The Council withheld some information in response to Mrs Horsburgh's request, which related to a statutory repair notice. During the Commissioner's investigation, the Council disclosed all of the withheld information, while also identifying and disclosing further information falling within the scope of Mrs Horsburgh's request.

  • Decision 180/2012 - Cal Solutions Limited and Scottish Water
    Cal Solutions Limited asked Scottish Water for a copy of a report prepared for it by a firm of solicitors. The Commissioner found that Scottish Water was right to withhold the report, on the basis that it was protected by the law relating to confidentiality of communications.

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