Decisions Round-up: 8 to 12 July 2013

We published five decisions this week.  Read the learning points below.


Key messages:

  • Respond to the whole request
    When responding to an information request, make sure that your response covers all the information sought. In Decision 128/2013, the authority only provided a partial response, leading to a technical failure in relation to the remainder of the information sought.


  • When claiming that harm would arise from the release of information, you must demonstrate how
    Several FOI exemptions contain a "harm test". This sets out that information can only be withheld if "substantial prejudice" would arise from release. When considering such exemptions, an authority must be able to demonstrate that the harm will arise or will be likely to arise. It will not be enough to present generic, hypothetical concerns. In Decision 131/2013, we found that an authority had failed to demonstrate that release would result in the required level of harm to its contractors' commercial interests.


  • Get it right first time
    Take time to fully consider an FOI response and you can save a lot of time and resource further down the line. In two decisions issued this week the authorities chose to release most or all of the requested information, but only following a time-consuming appeal to the Commissioner.


  • Ensure that reviews are independent
    The Section 60 Code of Practice that accompanies the FOI Act and the EIRs sets out that, where practicable, reviews should be handled by staff that were not involved in the original decision. This ensures that the review process is fair and impartial, and that requests are considered from a fresh perspective. In Decision 130/2013, the same local authority officer was involved in both the request and the request for review. The decision notes that an organisation of this size should have been able to ensure that the good practice guidance in the Code was followed.


Summary of decisions:

  • Decision 127/2013 - Mr James Macfarlane and the Police Investigations Review Commissioner (PIRC)
    Mr Macfarlane requested a copy of legal advice obtained by the authority's predecessor, the Police Complaints Commissioner for Scotland. The PIRC withheld this information under the FOI exemption relating to confidential legal advice (section 36(1)). The Commissioner agreed that the information was exempt.


  • Decision 128/2013 - Miss Kirsty MacFarlane and Comhairle nan Eilean Siar
    A technical decision concerning the failure to respond to an information request in its entirety.


  • Decision 129/2013 - Mrs Eileen Thomas and Perth and Kinross Council
    The Council refused Mrs Thomas's request for information relating to a property transaction, applying the FOI exemption that protects commercial interests. During the course of the Commissioner's investigation, the Council withdrew its reliance on the exemption and released the information to Mrs Thomas.


  • Decision 130/2013 - Councillor Peter Grant and Fife Council
    Councillor Grant requested details of budget proposals from the Council. This was refused, with the Council stating that release would harm the effective conduct of public affairs. The majority of the information was released to Councillor Grant during the course of the Commissioner's investigation.


  • Decision 131/2013 - Salmond's Mini-Coach Hire Ltd and West Lothian Council
    The company requested information relating to transport operating contracts. The Council withheld the information on the basis that release would harm the contractors' commercial interests. Our investigation found that the Council had failed to demonstrate the degree of harm required, and we ordered disclosure.

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