Decisions Round-up: 7 to 11 November 2016

Various issues feature in this week's round-up, including advice on when information is "held" (and not held), guidance on requests for personal data and a reminder of the importance of evidence when arguing that a request is vexatious.

Learning points:

  • Information must be recorded before it is "held"
    Where the answer to a question in an information request is "zero" or "none", authorities should take care before telling a requester it "holds" the information. For information to be held, it must be recorded in some way - an absence of information won't be information that is "held". And if it isn't held, this is what requesters should be told (Decision 233/2016).


  • Numbers might be "personal data"
    Numbers will be personal data if individuals can be identified from the numbers. In Decision 233/2016, we looked at whether the number of people referred Scotland-wide under the "Prevent" duty was personal data.


  • Requesters - it's not easy to justify disclosing sensitive personal data
    Information about things like an individuals' health, sexuality or their possible involvement in crime will be sensitive personal data. For good reasons, Data Protection law requires us to handle these kinds of data with particular care. As a result, they're unlikely to be suitable for disclosure under FOI.

    We looked at this in Decision 234/2016. The request was for information about a letter issued by Police Scotland. We were satisfied that the information was sensitive personal data. While brief references to the content of the letter had been made in the media, we weren't satisfied that this amounted to making the requested information public, or to valid consent for making it public.


  • Vexatious requests - we need evidence
    The Commissioner needs evidence before she can make a decision that a request was vexatious. Regardless of how challenging a requester's overall behaviour may be, each request must be considered on its merits, and a case must be made for that request being vexatious.

    In Decision 235/2016, we weren't satisfied that the authority had given us enough evidence that the request was manifestly unreasonable (under the EIRs). As a result, we ordered the authority to respond to the review requests again, in a different way.


  • Requests shouldn't be interpreted too narrowly
    If a search for information is too narrow, it may exclude information that gives important context. We considered this in Decision 232/2016.    

Decisions issued:

  • Decision 232/2016 Mark McLauchlin and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked for information about a forecast overspend in its revenue budget. It withheld the information arguing that disclosure would harm the effective conduct of public affairs.

    We found that some information had been incorrectly withheld, while Police Scotland had also failed to identify other information covered by the request. We also expressed concerns about the way in which some information covered by the request had been identified.


  • Decision 233/2016 Alastair Tibbitt and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Tibbitt asked for information about the "Prevent" duty guidance for Scotland (which relates to preventing people from being drawn into terrorism). Information was withheld under exemptions relating to national security, crime prevention and personal data.

    During our investigation, the Commissioner considered Police Scotland's interpretation of "information" and found that they didn't hold some of the information requested. Where information was held, the Commissioner found that Police Scotland were not entitled to withhold it and ordered them to disclose it.


  • Decision 234/2016 Tom Gordon and the Chief Constable of the Police Service of Scotland (Police Scotland)Police Scotland were asked for information about the production and issuing of a letter. Initially, Police Scotland refused to confirm or deny whether they held the information, or whether it existed. Later, they confirmed they held it, but argued that it was exempt from disclosure. Following investigation, we accepted that Police Scotland were entitled to withhold all of the information.


  • Decision 235/2016 A Milligan and Glasgow City Council
    The Council was asked for information about parking signs in a Glasgow street. It refused to respond because it considered the request to be vexatious. We did not agree and ordered the Council to comply with the review request.

  • Decision 236/2016 Neil Vassie and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Vassie asked Police Scotland why it had not agreed to monitor traffic speed and usage on a residential road. We found that Police Scotland did not receive the request or request for review (Mr Vassie had sent them to the wrong email address), and therefore did not fail to respond under the legislation.

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