Decisions Round-up: 7 to 11 March 2016



There's something old and something new in this week's Round-up:

Something old: unfortunately, after a better spell, there are a number of decisions about authorities failing to respond to requests.

Something new: we have a couple of firsts - our first decision looking at intellectual property rights under the EIRs, and our first involving the Scottish Agricultural Wages Board.

We also feature the learning points from the cases we resolved in February

Find out more in this week's round-up.


Learning points:

  • Respond in time!
    Both the FOI Act and the Environmental Information (Scotland) Regulations (the EIRs) require authorities to respond to requests and requests for review within a set time. It's important that authorities comply with these timescales. This round-up includes three cases where responses were late (Decisions 045/2016, 048/2016 and 053/2016). We've commented on this in the past and had, until recently, seen a slight reduction in the number of "failure to respond" cases coming to us.
  • Intellectual property rights under the EIRs considered for the first time
    We issued our first ever decision focussing on the intellectual property exception in the EIRs (Decision 049/2016). The authority was concerned that disclosing the information would cause substantial prejudice to the intellectual property rights of third parties - in this case, rights in a database. The decision looks in detail at the tests which need to be passed before the exception can be applied. In this case we found that the authority was entitled to withhold the information.
  • Be clear which exemptions you're applying - and why
    It's up to public authorities to satisfy the Commissioner that an exemption applies. The Commissioner was critical of the submissions made by the authority in the investigation which led to Decisions 046/2016 and 047/2016. The investigator spent a significant amount of time establishing which exemptions were being applied to which information, and why.
  • The list of bodies covered FOI changes over time
    If you regularly make FOI requests, you need to be aware of the changes made to the list of bodies which are subject to the legislation (for example, private prison contractors, providers of secure accommodation for children, grant-aided schools, independent special schools and Scottish Health Innovations will be covered from 1 September). However, it can also be useful just to remind yourself of what bodies are already covered. Last week, we published the first decision involving the Scottish Agricultural Wages Board, even though the Board has been subject to FOI since 2005 (Decision 053/2016).

    The Commissioner publishes a list which is regularly updated here.
  • When do you not "hold" the information you hold?
    We regularly issue decisions which look at section 3(2)(a)(i) of the FOI Act. Under this provision, an authority does not hold information for the purposes of the FOI Act if it holds it on behalf of another person. In Decision 051/2016, we agreed that the authority held information on behalf of another person. However, it was likely that the authority would also hold some of the information for its own purposes. We ordered the authority to carry out further searches of its records.
  • Withholding information which is already in the public domain
    When deciding whether to withhold information, you should check whether it's already in the public domain. If it is, it's much less likely that disclosure will cause harm. In Decision 052/2016, we required the authority to disclose information that was already public knowledge.

Decisions issued:

  • Decision 045/2016 Mr M and the Scottish Courts and Tribunals Service (SCTS)
    Mr M asked the SCTS for information about the Moorov Doctrine, which deals with the admissibility of evidence. The SCTS failed to respond to Mr M's request for review within the 20 working days set down by the Act.
  • Decision 046/2016 Fiona Stalker and NHS Grampian and Decision 047/2016 Ashleigh Barbour and NHS Grampian
    Ms Stalker and Ms Barbour both asked NHS Grampian for a report prepared by the Royal College of Surgeons about the general surgery service at Aberdeen Royal Infirmary. NHS Grampian disclosed a redacted version of the report. Following an investigation, we ordered NHS Grampian to disclose a small amount of additional information.
  • Decision 048/2016 ABW Consultants Ltd and West Lothian Council
    The Council was asked about planning issues at Whitrigg, East Whitburn. The Council failed to respond to ABW's request for review within the timescales set down by the Act and by the EIRs.
  • Decision 049/2016 Victor FJ Jordan and the Scottish Environment Protection Agency (SEPA)
    Mr Jordan asked SEPA for the information that had led it to make changes to the Indicative Flood Map for Ballater. Although SEPA explained why it had made the changes, it did not initially disclose information to Mr Jordan. Information was disclosed during the investigation. We found that SEPA was entitled to withhold information on the basis that disclosure would prejudice substantially third parties' intellectual property rights.
  • Decision 050/2016 Tommy Kane and the Scottish Ministers
    The Ministers were asked about a meeting between Humza Yousef MSP with the Qatari Ambassador. The Ministers disclosed some information to Mr Kane. We were satisfied that the remaining information was exempt from disclosure, because disclosure would prejudice the effective conduct of public affairs or international relations.
  • Decision 051/2016 Katherine Alexander and South Lanarkshire Council
    This case looks at whether the information Ms Alexander had asked for (the dates when a particular case was discussed at the South Lanarkshire Adult Protection Committee (APC)) was held by the Council for the purposes of the Act, or whether the Council held the information on behalf of the APC. We decided that, although the Council could hold information on behalf of the APC, it was likely that it held some information for its own purposes. We ordered the Council to carry out additional searches.
  • Decision 052/2016 Tommy Kane and the Scottish Ministers
    On this occasion, Mr Kane asked the Ministers about contact they had had with the petrochemical company, Ineos. The Ministers disclosed some information to Mr Kane. We agreed that some of the information could be withheld, but ordered the Ministers to disclose information which was already in the public domain.
  • Decision 053/2016 W&R Logan Ltd and the Scottish Agricultural Wages Board (SAWB)
    W&R Logan Ltd asked the SAWB for the guidelines used by SAWB staff to calculate agricultural wages. We found that the SAWB failed to respond to the request or request for review within the timescales set down by the FOI Act.

Resolved cases:

We also resolved 10 cases in February without the need for a formal decision. The summaries below provide insight into the less visible, but very important, role that resolution can play in improving relationships between authorities and requesters.

These are the main reasons the cases were resolved:

  • Information was disclosed during the investigation
    As usual, the main reason for cases to be resolved is authorities disclosing additional information to the requester during our investigation. That happened four times in February. The requesters were happy with what was disclosed and withdrew their appeals after receiving the information.
  • The request hadn't been interpreted properly
    In one case, when we came to look at the information which had been withheld, we realised that it did not answer the information request. It turned out that the authority had misinterpreted the request and didn't actually hold any information covered by the request. The requester was satisfied with this explanation.
  • Disclosing information under FOI means putting information into the public domain
    In two cases, the authority refused to confirm or deny whether it held information. It was clear from the terms of the request that the requesters would not want the information to be disclosed into the public domain. We explained the effect of disclosing information under FOI and the requesters decided to withdraw.Information could be disclosed to the requester outwith FOI.

    In another case, the information was subject to an absolute exemption. However, given the identity of the requester, the authority was able to disclose it outwith FOI, which meant it didn't go into the public domain.
  • The authority responded after an appeal was made to us
    In one case, the authority hadn't responded to a request. However, it did respond after an appeal was made to us and the requester was content to withdraw his appeal.
  • We treated the appeal as abandoned
    We can refuse to carry out an investigation where we are satisfied that the requester has abandoned their appeal. In one case, we wrote to the requester three times asking for information which was vital to the investigation. When the requester didn't respond, we closed the case.

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