Decisions Round-up: 7 to 18 July 2014



We published twelve decisions between 7 and 18 July – details, links and learning points below.


Key messages:


  • Is the request for environmental information?
    If the requested information is environmental information, an authority must comply with the EIRs when replying to the request.  Although FOISA and the EIRs are very similar, there are some key differences which may affect the applicant’s rights.  Under FOISA, an authority can choose to accept a late request for review, but this is not allowed under the EIRs.  The importance of dealing with requests under the appropriate regime is explained in Decision 146/2014

    In some cases, a request will cover both environmental and non-environmental information – it is important to take this into account when responding.  In Decision 143/2014 an authority was required to issue a new response to the applicant because it had failed to do this.


  • When calculating costs, don’t aggregate requests
    If an applicant makes several requests in a single letter or email, an authority should consider whether the requests are linked (e.g. on the same subject), or separate.  If they are separate requests, the cost of dealing with each request must be considered separately, and they cannot be combined when working out whether the cost of complying with the request would be more than £600.  Decision 143/2014, has more details on this.


  • Information can be described in many ways
    Applicants and public authorities often use different terminology to describe information.  Authorities should take this into account when considering what information a request might cover.  In Decision 144/2014, a request for information from a report was refused because the authority didn’t consider any of the documentation it held to be a formal “report”.


  • What the authority actually holds may not meet your expectations
    As noted in Decision 147/2014, during an investigation we can only consider what information the public authority actually holds, which may not be the same as what it should hold.  We need to be satisfied that the authority has taken all reasonable steps to look for the information.  

  • Remember – requests for personal data are different
    Where the requester is seeking personal data, there is no presumption in favour of disclosure.  The requester must be able to satisfy the Commissioner that they are pursuing a legitimate interest. Personal curiosity is not considered to be sufficient. As shown in Decision 146/2014 and Decision 152/2014, the applicants were unable to show that they had a legitimate interest in receiving the information requested.

  • Repeated requests needn’t be identical
    A request is “identical” to a previous request if both its wording and scope match that of the previous request.  A request is “substantially similar” where the information sought in the two requests is the same in all its key aspects, even if the wording of the two requests differs (as in the case which led to Decision 153/2014).  In both cases the authority will be entitled to refuse the later request as repeated.


  • Compliance with timescales remains a key issue
    We continue to see a number of cases where public authorities don’t respond to requesters within the required statutory timescales. 


 Decisions issued:


  • Decision 143/2014 RJ Soutar and Dundee City Council
    Mr Soutar made a number of information requests, grouped into six sets of questions. The Council refused to respond, saying that it would cost more than £600 to do so.  The Commissioner found that the Council should have separated out Mr Soutar’s questions when considering its costs, and that it should also have identified that some of Mr Soutar’s requests were for environmental information.  We found that the Council should have provided advice and assistance to Mr Soutar, and required the Council respond again to his request.


  • Decision 144/2014 Mr Derek Bull and Renfrewshire Council
    Mr Bull asked the Council for a report on noise levels within his home, but the Council said it did not hold the information.  During our investigation, the Council accepted that it did hold some information, in documents which it hadn’t considered to be “reports”.  The relevant information was provided to Mr Bull.    

  • Decision 145/2014 Mr Niall MacKinnon and Social Care and Social Work Improvement Scotland (SCSWIS)
    Mr MacKinnon asked for information relating to a specific complaint and inspection report.  SCSWIS told Mr MacKinnon it did not hold some of the information he had asked for and withheld other information because it considered disclosure would be substantially prejudicial to an investigation.  We agreed with the arguments put forward by SCSWIS and that the public interest favoured withholding the information.


  • Decision 146/2014 Mr Fraser Hall and Glasgow City Council
    Mr Hall asked for information relating to ground consolidation work carried out in Strathbungo.   Some information was provided, but some was withheld.   We agreed that the withheld information was exempt from disclosure, as it remained commercially confidential and the public interest lay in maintaining confidence and fair competition.  We also agreed that the Council was entitled to withhold some personal data.


  • Decision 147/2014 Mr B and Dumfries and Galloway Council
    Mr B asked for information on a review of the Council’s Disciplinary Policy.  The Council withheld information, but decided it could be disclosed during the investigation.  We were satisfied that the Council didn’t hold any further information.


  • Decision 152/2014 Mr Niall MacKinnon and Education Scotland
    Mr MacKinnon asked for pre-inspection and school visit reports relating to a particular school.  Education Scotland withheld some personal data from the information provided.  We accepted that this was the correct approach.


  • Decision 153/2014 Mr Niall MacKinnon and the Scottish Public Services Ombudsman (SPSO)
    Mr MacKinnon asked for information about complaints relating to Education Scotland and its predecessor.  SPSO refused the majority of this request on the basis that it considered it to be repeated, which we accepted it was entitled to do.


In five decisions, the Commissioner found that in each case the public authority had failed to respond to the information request and request for review within the required 20 working day timescales:

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