Decisions Round-up: 9 to 13 November 2015



How effective are public authority searches for information? We regularly receive appeals because the requester thinks an authority should hold more. While our investigations can often uncover more information, two of this week's cases concluded that the authority had indeed provided all the information they held. And one of the decisions gives a useful overview of the range of factors we'll look at when considering whether searches are reasonable.

Find out more in this week's round-up...

Key messages:

  • There are rare cases where authorities can neither confirm nor deny if information is held
    Section 18 of the FOI Act allows public authorities to refuse to confirm or deny whether they hold information in certain, rare, cases. Section 18 applies to a limited number of exemptions. It can only be used where information, if it was held, would be exempt from disclosure under an exemption and where revealing whether it exists would be against the public interest. Decision 166/2015 looks at a case where, unusually we agreed that the authority was entitled to refuse to confirm whether it held some, but not all, of the information that had been asked for.
  • How do we decide if a public authority has identified all the information it holds?
    A lot of our cases involve deciding whether a public authority has identified all of the information it holds which falls within the scope of their request. We need to come to a decision based on the balance of probabilities. Decision 167/2015 gives a useful summary of the factors we'll take into account in coming to a decision. These include: the experience and knowledge of the individual carrying out the searches; whether searches were reasonable, proportionate and thorough; and whether the search terms used were likely to identify relevant information.
  • Condition 6 - where FOI meets data protection
    When a public authority is deciding whether it can disclose someone else's personal data without breaching the Data Protection Act (DPA), chances are it will have to consider condition 6 of Schedule 2 to the DPA. Condition 6 has a number of tests that must be met before the personal data can be disclosed. Decision 170/2015 looks at these, focussing on whether disclosure of the personal data was "necessary". Here, we decided that disclosure of the personal data wasn't necessary, as a separate, anonymous, report had already been published which dealt with a lot of the requester's concerns.


Decisions issued:

  • Decision 166/2015 The Applicant and Police Scotland
    Police Scotland was asked for any information it held about the involvement of Kenny MacAskill MSP in the police inquiry into the murder of Barry Wallace by William Beggs. The Police refused to confirm or deny whether they held any information. Following an investigation, we required Police Scotland to reveal whether they held information relating to Mr MacAskill's involvement as an MSP or Justice Secretary, but not as a solicitor in private practice.
  • Decision 167/2015 Organisation S and Transport Scotland
    Transport Scotland was asked for information it held about Sustaining Dunbar, a community development trust. It disclosed some information, and told the requester that was all the information it held. The requester believed that Transport Scotland should hold more information. Following investigation, we were satisfied that it didn't.
  • Decision 169/2015 Sam Cook and Renfrewshire Council
    The Council was asked for information presented at a meeting of its Procurement Sub-Committee. The Council told Mr Cook that all of the information was available on its website, providing links to the information. Mr Cook expected that more information would have been made available to the committee, but we were satisfied that the Council had published all of the information Mr Cook had asked for.
  • Decision 170/2015 David Ross and NHS Lothian
    Mr Ross asked NHS Lothian for a copy of a report prepared following an external review of its perinatal psychiatry service. NHS Lothian withheld the report on the basis that the entire report comprised personal data and disclosure would breach the DPA. Following an investigation, we agreed that the whole of the report was personal data and that it wasn't possible to anonymise the report without making it unintelligible. We also concluded that it couldn't be disclosed without breaching the DPA. An earlier review had been published which focussed on the safety and quality of the service, rather than on the performance of individuals. We considered that the earlier review satisfied Mr Ross's legitimate interests.
  • Decision 171/2015 Guy Duman and City of Edinburgh Council
    Mr Duman is interested in the advertising drums situated in the Meadows in Edinburgh. He wanted to know who in the Council had authorised the drums and under what terms. The Council initially told Mr Duman it didn't hold any information falling within the scope of his request although, during the investigation, it located some information and disclosed it. We were satisfied that, by the end of the investigation, the Council had given Mr Duman all the information it held.

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