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 20th
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 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.
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