Decisions Round-up: 18 December 2017 - 12 January 2018

We've seen several recent cases about whether information is held. This week's Round-up points readers to new guidance we have issued on this. There's also a learning point about what authorities do and don't have to do when they receive follow up correspondence to a vexatious request. Lastly, there are details of the cases we resolved in December without the need for a decision notice.


Learning points:


  •  Information not held - new guidance available
    In Decisions 208/2017 and 209/2017, the requesters were told that the authorities did not hold the information they had asked for. We recently published detailed guidance on section 17 of the FOI Act, which includes examples of decisions that consider some of the thornier issues, such as whether a public authority holds information on its own behalf or on behalf of another (e.g. Decision 208/2017), and how far it must go in compiling information to answer a request. The guidance also explains what evidence of searches we will require from authorities when investigating a "not held" case.


  • Vexatious requests - what can happen next?
    If a requester has been given a formal notice telling them that a request is vexatious, and then makes an identical or very similar request, the authority is not required to issue another formal refusal notice if it would be unreasonable to do so.

    If the requester then makes a request for review which is also vexatious, the authority is not required to carry out a review - but it must tell the requester this.

    For more guidance, see our briefing on Vexatious or repeat requests.


  • Take care when interpreting requests
    In Decision 206/2017, once we started investigating, the authority realised it might have interpreted the scope of the request too narrowly. It's always worth considering the precise wording of a request - if it includes terms such as "all" or "any", the request may cover a wide range of information. When in doubt about what information the requester wants, it's best to contact them before proceeding.

Decisions issued:


  • Decision 203/2017 Brian Gourlay and West Dunbartonshire Council
    Mr Gourlay asked who (within the Council) was aware of specified emails. He also asked who was involved in formulating the response to a complaint. We found the Council failed to respond to Mr Gourlay's request and request for review within the FOI timescales.


  • Decision 204/2017 Andy Shipley and Edinburgh International Conference Centre (EICC)
    EICC was asked for the legal costs of an employment settlement agreement. It withheld the information, considering it to be personal data and also claiming that disclosure would harm EICC's commercial interests.

    We disagreed and ordered EICC to disclose the information. The sum paid for legal services was not the personal data of the claimant, and we did not accept EICC's arguments relating to its commercial interests.


  • Decision 206/2017 Mr Y and the Scottish Prison Service (SPS)
    Mr Y asked about an undertaking made to a court. After review, the SPS disclosed information. However, during our investigation, the SPS told us that it held significantly more information, but providing it would exceed the £600 cost limit.

    Because the SPS was now taking such a different view of the request, we required it to carry out a new review of its response and to provide Mr Y with appropriate advice and assistance.



  • Decision 208/2017 Ian Graham and Aberdeen City Council
    This request was for information relating to Electoral Services provided for the Returning Officer. The Council stated that it held the information on behalf of the Returning Officer (which would mean it was not held by the Council under FOI).

    We found that the information was held on behalf of the Returning Officer, so was not held by the Council for the purposes of the FOI Act.


  • Decision 209/2017 Niall MacKinnon and Education Scotland
    Education Scotland was asked to provide a "review document" relating to a review of its response to a complaint. It told Dr MacKinnon that no review document had been created, and explained why. After investigation, we accepted this.

Resolved cases


We also resolved five cases in December without the need for a formal decision, after the requesters chose to withdraw their appeals. The reasons were:

  • Information disclosed
    In three cases, the requester withdrew after the authority disclosed the information. In one of these cases, the authority waived the fee for environmental information. In another, disclosure took place after the requester explained to our investigating officer what information they wanted.


  • Change of mind
    A requester decided to withdraw his appeal after realising that the information, if disclosed under FOI, would enter the public domain. Another requester decided to withdraw after discussing the scope of the investigation and the extent of the Commissioner's remit.


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