Decisions Round-up: 12 to 16 August 2013

We published 14 decisions this week.  Here are the learning points:


 Key messages:

  • Information held on behalf of third parties may not be accessible under FOI
    There will be circumstances where Scottish public authorities hold information solely on behalf of others. This might happen, for example, where elements of a public authority's systems or resources are offered to a third party to support it in the delivery of its functions. In such cases, information may not be "held" by the public authority for the purposes of FOI. The authority will not use the information as part of its own day to day work, and may have limited access and little control over the information. This was the case in two decisions issued this week - Decision 158/2013 and Decision 160/2013.


  • When claiming that information is "otherwise accessible", ensure that it is available, and the requester knows how to access it
    Requests can be refused under section 25 of the FOI Act if the information is accessible to the requester through another route. When applying this exemption, authorities should ensure that the relevant information is both accessible, and the requester understands how to access it. In Decision 168/2013 only some of the requested information was published on the authority's website, while in Decision 164/2013, the authority assumed that the means of access were clear to the requester, which contributed to a failure to clearly apply the section 25 exemption to the information.


  • Using the FOI appeal route will often lead to more information being disclosed
    In many of our decisions, we order public authorities to disclose information to requesters. However, authorities often release additional information during the course of our investigations, or at review stage. In Decision 165/2013, the authority disclosed some information to the requester on review, having initially refused to confirm whether it even held the information. In Decision 168/2013, all relevant information was released during our investigation.


  • Information which is substantially in the public domain is unlikely to be exempt
    Where the content of information has been substantially disclosed into the public domain previously, it is unlikely that non-disclosure will be appropriate. In Decision 166/2013, much of the information contained within a requested report had previously been disclosed in e.g. public meetings.


  • Make sure you hold information before seeking to exempt it
    Before seeking to withhold information, an authority should be sure that they actually hold it. In Decision 169/2013, it only became apparent during our investigation that information which the authority had refused under the FOI Act's confidentiality exemption was not, in fact, held by the authority.


Decisions issued:

  • Decision 158/2013 - Mr Sandy Longmuir and the Scottish Ministers
    Mr Longmuir asked the Ministers for information they had received from the Commission for the Delivery of Rural Education. The Ministers informed him that they did not hold the information for the purposes of FOI, as they only held it on behalf of the Commission. Following investigation, we accepted that the Ministers did not hold the information for the purposes of FOI.


  • Decision 159/2013 - Mr Bruce Thompson and the City of Edinburgh Council
    Mr Thompson requested information about the development of a local sports facility. The Council withheld some information citing exceptions in the EIRs. Further information was released to Mr Thompson during the course of our investigation, with only the names of Council officials being withheld. We concluded that Mr Thompson's legitimate interests were served by the disclosure of the information that had already been disclosed to him (this included the job titles of the officials), and that it was appropriate to withhold the names of officials in this particular case.


  • Decision 160/2013 - Mr Michael Roulston and Stirling Council
    Mr Roulston asked the Council for information about the costs arising from the suspension of a named staff member. The Council informed Mr Roulston that they did not hold this information, with any information in its possession being held only on behalf of Central Scotland Joint Police Board, to whom Mr Roulston could make a request for information. Following investigation, we agreed that the Council did not hold the information for the purposes of FOI.


  • Decision 161/2013 - Mr Michael Roulston and Police Scotland
    Mr Roulston requested information on the cost of specified temporary promotions. While some information was provided, Police Scotland informed him that it did not hold the remainder. Following investigation, we accepted this conclusion.


  • Decision 162/2013 - Mr Paul Hutcheon and the Scottish Ministers
    The Ministers provided some information in response to Mr Hutcheon's request on the remit of particular Scottish Government workstreams, and informed him that they did not hold the remainder of the information he sought. We found that the Ministers has provided with all the relevant information that they held.


  • Decision 163/2013 - Mr N and the Scottish Prison Service (the SPS)
    A technical decision addressing the SPS's failure to respond to Mr N's information request within the FOI Act's timescales.


  • Decision 164/2013 - Mr Julian Calvert and Argyll and Bute Council
    Mr Calvert requested a range of information relating to a specified ferry service. Some information was disclosed, with the remainder withheld under various FOI exemptions. We found that the Council was entitled to withhold the information, although it should have notified Mr Calvert that some information was being withheld because it was otherwise accessible to him.


  • Decision 165/2013 - Mr Ralph Holland and Police Scotland
    Mr Holland requested a copy of police procedures. The Police initially refused to confirm or deny whether it held the procedures, before releasing a redacted version to Mr Holland on review. Our decision found that the Police had been right to withhold the remainder, on the grounds that release would be likely to harm the prevention or detection of crime.


  • Decision 166/2013 - Mr David Scott and Historic Scotland
    Historic Scotland refused Mr Scott's request for information relating to a local monument, citing the EIR exception protecting information where disclosure would harm the interests of the person that supplied it. Following investigation, we found that the exception in question had been incorrectly applied, and required that the relevant information be disclosed to Mr Scott.


  • Decision 167/2013 - Mr L and Scottish Borders Council
    Mr L requested information relating to the Council's equality policies. The Commissioner agreed with the Council's conclusion that it did not hold any relevant recorded information.


  • Decision 168/2013 - Mr Maurice Hardy and Highland Council
    Mr Hardy requested information relating to a specific planning application. The Council initially responded by directing Mr Hardy to its website, before providing further information in response to his request for a review. Additional information was released to Mr Hardy during our investigation. We subsequently concluded that all relevant information had been released.


  • Decision 169/2013 - Mr Martin Whittle and the City of Edinburgh Council
    Mr Whittle requested information relating to the care provided to an elderly relative. The Council refused the request, citing the FOI Act's "confidentiality" exemption. Following Mr Whittle's appeal, the Council informed the Commissioner that no relevant information was held.


  • Decision 170/2013 - Andrew Picken and the Scottish Ministers
  • Decision 171/2013 - Mr Paul Hutcheon and the Scottish Ministers
    Two technical decisions concerning the Ministers' failure to respond to information requests within the 20 working day time limit.

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