Decisions Round-up: 9 to 13 May 2016

Decisions Round-up: 9 to 13 May 2016

A packed round-up this week, including two cases where, embarrassingly, authorities responded to an FOI request by trying to withhold information that they routinely published on their website.

Other cases featured include the first of several decisions we'll be issuing about requests on anti-terrorism guidance, and a useful reminder that personal recollections may not be enough to evidence a search for information...

Learning points:

What's on your website?
Decisions 102/2016 and 107/2016 were those embarrassing cases where the requester pointed out that the withheld information was actually available on the authority’s website…it’s always worth checking whether information has been published before trying to argue that it’s exempt….

Personal recollections may not be enough to evidence a search
In Decision 095/2016, we criticised the authority for failing to show that adequate searches had been carried out. In this case, it was not enough to rely on the personal recollections of staff, no matter how experienced and knowledgeable they were. We had to ask the authority three times for evidence of adequate searches, leading to unnecessary delays.

The ‘law enforcement' exemption can cover investigations into a councillor’s conduct
Decision 096/2016 is the first time we’ve considered whether the 'law enforcement' exemption in the FOI Act can apply to information about a Council’s investigation of improper conduct by a Councillor. We accepted that the exemption can be used in this situation.

Authorities must give proper notice to requesters
It’s important that responses to requests meet all the requirements set down in the legislation. If an authority withholds information, it must explain which exemption or exception applies, and why. In Decision 100/2016, the authority simply told the requester that the information was out for consultation and couldn’t be provided. This response didn’t comply with the requirements section 16 of the FOI Act.

When is a response a prompt response?
In Decision 101/2016, the requester complained that, although the response to his request for review was issued on the 20^th working day, it was not issued “promptly” as required by the FOI Act (section 21(1)). We noted that the request for review was made just before the Christmas holiday period, and did not uphold the complaint.

Decisions issued:

Decision 093/2016 Margaret Nugent and Glasgow City Council
Mrs Nugent asked the Council for a copy of a contract relating to the review of the taxi tariff for Glasgow. The Council told Mrs Nugent it didn’t hold the contract. We investigated and were satisfied that this was the case.

Decision 094/2016 Rab Wilson and the Scottish Ministers
Mr Wilson asked for emails relating to his own correspondence, sent from the Permanent Secretary’s office to the Director General Health and Social Care. He received some information, but some was withheld. The withheld information appeared to be a general discussion, and we didn’t agree that disclosure would be likely to harm the effective conduct of public affairs. However, we accepted that some other information was correctly withheld.

Decision 095/2016 Stephen Calder and Aberdeenshire Council
Mr Calder asked the Council about the lease and insurance of public bowling greens and tennis courts in Peterhead. The Council told Mr Calder it didn’t hold any information which would answer his request. Some information which fell within the scope of the request was located during our investigation, and provided to Mr Calder.

Decision 096/2016 Alan Stewart and Argyll and Bute Council
Two councillors made a complaint to the Council about another councillor. Mr Stewart asked about the response to the complaint, but the Council withheld the information. We agreed it was entitled to do this: disclosure would substantially prejudice the exercise of one of the Council’s functions, namely to ascertain whether the councillor in question was responsible for improper conduct (section 35(1)(g) and section 35(2)(b) of the FOI Act).

Decision 097/2016 William Chisholm and Scottish Borders Council
The Council decided to terminate its contract with the company responsible for providing a new waste disposal plant. Mr Chisholm asked to see any information that was considered by Councillors or Council Committees before the decision was taken.

The Council didn’t respond to this request, and after review, decided to withhold the information because it was commercially confidential (regulation 10(5)(e) of the EIRs). We accepted that some information was correctly withheld, but ordered disclosure of information which did not relate to technical details or the financial arrangements of the company.

Decision 099/2016 Gordon Motion and Stirling Council
Mr Motion asked the Council for the information it held about the construction of a house and about enforcement notices issued in relation to the property. The Council disclosed some information to Mr Motion. Following an investigation, we found that some withheld personal data should have been disclosed, but agreed that the Council was right to withhold other information.

Decision 100/2016 Colin Kerr and NHS Dumfries and Galloway (NHS D&G)
Mr Kerr asked NHS D&G for a copy of a document, but NHS D&G told him it couldn’t provide it as it was out for consultation. NHS D&G’s response didn’t make it clear whether it held the document for the purposes of the FOI Act and, if it did, what exemptions it was relying on to withhold it. Following an investigation, we were satisfied that NHS D&G did hold the document for the purposes of FOI. Initially it didn’t have a password which would allow it to access the document, but this was easily resolved, given that NHS D&G was one of the consultees.

The next three cases all involve the same request made to different authorities – i.e. for the contact details of the manager(s) responsible for children leaving care.

Decision 101/2016 Stephen Williams and North Lanarkshire Council
In this case, the Council initially withheld the name of the manager and their email address (on the basis that disclosure would breach the Data Protection Act (the DPA)), but provided the name and a generic email address at review. We were satisfied that it was clear from Mr Williams’ correspondence that he wanted a direct email address. The Council disclosed this to Mr Williams during the investigation. We found that the Council had initially interpreted Mr Williams’ request too narrowly.

Decision 102/2016 Stephen Williams and Perth and Kinross Council
Here, the Council refused to disclose the direct email addresses of the managers, arguing that disclosure would substantially prejudice the effective conduct of public affairs (section 30(c) of the FOI Act). When Mr Williams appealed to us, he commented that he had been able to find their direct email addresses on the Council’s website. This Council subsequently withdrew its reliance on section 30(c) and instead decided to apply the exemption which covers information which is otherwise reasonably obtainable (section 25(1)). We agreed that this exemption applied.

Decision 107/2016 Stephen Williams and South Ayrshire Council
In this case, the Council initially withheld some information on the basis that disclosure would breach the DPA. Again, Mr Williams managed to locate the information on the Council’s website. During the investigation, the Council agreed that disclosing the information would not breach the DPA, but commented that it would have been helpful for Mr Williams to tell it what information he had been able to find. We reminded the Council that it was its responsibility to identify whether the information had been published – and not the requester’s. Without doing this, no exemption can be applied properly.

Our next three decisions are also linked. The Counter-Terrorism and Security Act 2015 places a duty on certain bodies, including all Scottish councils, to have “due regard to the need to prevent people from being drawn into terrorism.” The Scottish Government has issued guidance on complying with this duty. The three decisions involve similar requests from the same person about how councils had implemented this “PREVENT” guidance.

Decision 103/2016 Alastair Tibbitt and Inverclyde Council
The Council initially told Mr Tibbitt that the information was exempt from disclosure. In applying exemptions, it confirmed that it held the information. At review stage, however, the Council refused to confirm or deny whether it held the information. We concluded that the Council couldn’t confirm that it held the information and then refuse to say whether it held the information or not. We required to Council to issue a new review response to Mr Tibbitt.

Decision 104/2016 Alastair Tibbitt and Moray Council
In this case, the Council also told Mr Tibbitt that the information was exempt, applying exemptions and confirming that it held the information. However, during the investigation, it became clear that the Council didn’t actually hold any information falling within the scope of Mr Tibbitt’s request. The Council’s notice to Mr Tibbitt therefore breached the FOI Act.

Decision 105/2016 Alastair Tibbitt and North Ayrshire Council
This Council also told Mr Tibbitt that the information was exempt from disclosure. Again, this meant that it was confirming that it held the information. During the investigation, the Council told the Commissioner that it didn’t actually hold any information, but continued to argue that the fact that it didn’t hold any information was itself information and was exempt from disclosure. We disagreed: exemptions cannot be applied to information which the Council does not hold. We required it to issue a new review response to Mr Tibbitt.

Mr Tibbitt has made a number of other applications to us about the way local authorities have responded to his requests about the PREVENT guidance. Once all of the decisions have been issued, we’ll look at all learning points arising from these cases in a future round-up. Watch this space…

Decision 106/2016 Mr N and the Chief Constable of the Police Service of Scotland (Police Scotland)
Mr N asked for the “release notes” relating to upgrades of the software system used to by the Police to record complaints and misconduct cases. Police Scotland withheld the information under the FOI Act’s law enforcement and commercial interests exemptions. After investigation, we accepted that the information was exempt because disclosure would have been likely to harm the commercial interests of the company providing the software, by providing competitors with detailed commercial information.