Decisions round-up: 13 to 17 May 2013

Seven decisions were published this week, with a number of learning points for authorities and requesters.


Key messages:


  • Think EIR!
    Requests for environmental information must always be dealt with under the EIRs. Decision 085/2013 and Decision 086/2013 both concerned requests which were initially responded to under FOI, and only recognised as EIR requests following an appeal to us. A lower understanding and awareness of the EIRs is a problem for many authorities, as highlighted in the findings from our Learning and Development Survey. Do your procedures allow for the early identification of EIR requests?


  • If information is likely to be held by another authority, let the requester know
    If you receive an FOI request for information which you know is held by another body, you should let the requester know this under your duty to advise and assist (while also considering relevant information that you hold). In Decision 083/2013 the authority only held a small amount of information falling within the scope of the request, as the event to which the request related was organised by another public body.


  • Do your FOI procedures allow for holiday periods?
    It's a good idea to regularly review your procedures to ensure that FOI response times do not suffer over holiday periods. While official Scottish bank holidays are not counted as working days for the purposes of FOI, requests must still be responded to within appropriate timescales, so authorities should ensure that relevant procedures are in place. The response in Decision 081/2013 was significantly delayed - partly as a result of a failure in processes over the Christmas period.


  • Word your request carefully to get the information you need
    When requesting information, make sure you word your request as simply and clearly as possible to help ensure that it can be responded to quickly and accurately. In Decision 084/2013, the wording of the request included a presumption about the authority's actions. This led to uncertainty about how the request should be interpreted and what information was covered. Keeping requests clear and simple will help to avoid similar problems occurring.


  • If the information sought is otherwise accessible, help the requester to find it
    In Decision 084/2013, some of the requested information was available online in publicly accessible documents. Where information is available in this way, authorities should direct the requester to where information can be accessed.


  • Can you make an appropriate case for withholding information?
    Whenever an authority decides to withhold information, it must be prepared to make a full case for the application of any exemption (under the FOI Act) or exception (under the EIRs). In Decision 082/2013, the authority provided only general arguments for non-disclosure. These failed to demonstrate that the disclosure of the specific information would cause the level of harm required for the exemption to apply.


Summary of decisions:

  • Decision 080/2013 - The Global Alliance Against Industrial Aquaculture (GAAIA) and the Scottish Ministers
    The Ministers withheld some information in response to GAAIA's request for information on anti-predator nets used by Scottish salmon farms. The remainder of the information was released to GAAIA during the course of our investigation.


  • Decision 081/2013 - Mr Alistair Sloan and the Scottish Ministers
    Mr Sloan requested correspondence between specific public figures. After a significant delay, and intervention by the Commissioner, relevant information was released to Mr Sloan.


  • Decision 082/2013 - Mr David Fleming and Aberdeenshire Council
    Mr Fleming requested information relating to a local swimming pool. The information was withheld, with the Council arguing that disclosure of the information would prejudice the ability of a third party, the Health and Safety Executive (HSE), to carry out its functions in relation to the pool. Mr Fleming disputed the non-disclosure of some information. Our investigation found that the Council had failed to demonstrate that the release of the information in question would harm the HSE's ability to carry out its functions, and we required disclosure.


  • Decision 083/2013 - Mr Tom Gordon of the Sunday Herald and Historic Scotland
    Mr Gordon requested information relating to an event launch held at Stirling Castle. Following the provision of some information Mr Gordon appealed to the Commissioner, believing that more information should be held. Four more documents were identified and released during our investigation, with the Commissioner concluding that no further information was held.


  • Decision 084/2013 - Mr Daniel McGinigle and Renfrewshire Council
    The Council provided some information in response to Mr McGinigle's request for housing data, but informed him that other information was not held. We found that the Council had failed to identify all relevant information, but that some of the additional information was reasonably obtainable to Mr McGinigle through the Council's website.


  • Decision 085/2013 - Mr Walter Zayachkivsky and the City of Edinburgh Council
    This case concerns a request for information in relation to specific statutory repairs carried out by the Council. The request was initially dealt with under the FOI Act, with the Council acknowledging on appeal that it should have dealt with under the EIRs. Following investigation, we concluded that some of the requested information should be disclosed to Mr Zayachkivsky.


  • Decision 086/2013 - Dr David Johnston and Angus Council
    Another case in which the authority failed to recognise a request for environmental information until it was appealed to the Commissioner. In this case, we found that the Council had acted correctly in withholding the information, on the grounds that it was personal information, and that disclosure would breach data protection law.


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