Decisions Round-up: 17 - 21 December 2018

This week, we feature the first ever judgment from the Court of Session on the interpretation of "vexatious" in section 14 of the FOI Act. There's also useful guidance on the EIRs, with a decision highlighting what authorities need to think about when charging for access to environmental information. We also have details of an EIRs case where the authority's approach led us to recommend staff training, and an FOI case which underlines the importance of taking a fresh look at repeated requests if a reasonable amount of time has passed.

Court of Session upholds the Commissioner's "vexatious" decision

In the first ever decision from the Court of Session on the "vexatious" provision in section 14(1) of the FOI Act, the Court of Session agreed with the Commissioner that an information request was vexatious.

The judgment can be read here. We'll update our guidance later this month to reflect the lessons from the judgment.

Learning points:


  • Responses must comply with FOI
    In Decision 203/2018, a public authority belatedly relied upon the EIRs exception for incomplete or unfinished information, although this was contradicted by previous statements and although the authority later confirmed that the information had not been amended after the request was received. We concluded that disclosure had been delayed for no apparent reason. We criticised the "business as usual" approach to the requests, which did not give due consideration to the requester's legal rights, and recommended that staff training be carried out.


  • Charging for environmental information
    Decision 201/2018 is a useful summary of all the points to consider when charging for environmental information. In this case, the authority got it right.


  • Repeated/vexatious requests and the passage of time
    Decision 204/2018 considers a request which was very similar to a request from the same person made some years ago. At that time, we agreed that the information was exempt from disclosure. The authority decided that the newrequest was both vexatious and repeated. It argued that the information was the same, and would not have changed. However, we disagreed: during the years that had passed, new information could have come to light; some information may no longer be held; or the balance of the public interest may have changed.


Decisions issued:


  • Decision 198/2018 Mr C and the Chief Constable of the Police Service of Scotland
    Police Scotland were asked about officers who were present at the requester's address on a named date. Police Scotland refused to confirm or deny whether the information existed or was held by them. We accepted this response, in the circumstances of this case.


  • Decision 201/2018 Mrs N and Glasgow City Council
    Mrs N asked for a range of information about a planning application. The Council issued a fees notice, which Mrs N challenged. After investigation, we found that the Council was entitled to issue a fees notice and that the amount charged was reasonable.


  • Decision 202/2018 Mr T and the Scottish Ministers
    The Ministers were asked about the Scottish Government's decision not to order an inquiry into undercover policing in Scotland. They withheld information under a number of exemptions, including the FOI exemption protecting information which relates to the formulation or development of government policy (section 29(1)(a)). At review, the Ministers were asked to reconsider their reliance on section 29(1)(a) but other exemptions were not challenged.

    Following the appeal to the Commissioner, the Ministers disclosed some information but applied new exemptions to information previously withheld under section 29(1)(a). We found that the Ministers should have provided the disclosed information when responding to the request, and ordered them to carry out a new review of their handling of the request.


  • Decision 203/2018 Salmon and Trout Conservation Scotland and the Scottish Ministers
    The Ministers were asked for two inspection reports about fish escapes from a fish farm at Scadabay in 2016.
    We did not accept the Ministers' view that the information was unfinished or incomplete, and found it had been wrongly withheld. We also found that the issues raised by the handling of this case indicated that staff training was required.


  • Decision 204/2018 Mr N and the Chief Constable of the Police Service of Scotland
    Mr N asked about the movements of a named person. Police Scotland considered the request to be vexatious. They refused to carry out a review on the basis that it was a repeat request. After investigation, we found that the request was not vexatious or repeated. Significant time had passed since the first request and circumstances could have changed. We required Police Scotland to carry out a review and respond differently.

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