Decisions Round-up: 19 December 2016 to 13 January 2017


We've published 16 decisions since 16 December. Learning points include advice to help ensure that appropriate assistance is given when a request is refused on cost grounds, and a reminder that not all publicly available information will be automatically exempt. There's also a timely reminder that it's only 49 weeks until Christmas…

Learning points:

  • Don't leave it too late to give advice on narrowing a request
    Authorities don't have to comply with requests under the FOI Act if complying would cost more than £600. But that's not the end of the story. In most cases, authorities need to tell requesters how to narrow the scope of their request to bring it under the £600 limit. This advice should be given as early as possible. In Decision 274/2016, the authority was criticised for failing to give advice on narrowing the request until after a review had been sought. The decision also says authorities should give requesters a proper breakdown.


  • Publicly available information isn't automatically exempt from disclosure
    Public authorities can refuse to disclose information if a requester can "reasonably obtain" the information without making a request for it, for example where an authority already publishes the information on its website. Decision 271/2016 makes it clear that there are limits to this. Information which appears in a different context won't automatically be "reasonably obtainable" - particularly where it's not obvious where to find it.


  • Make sure you know what the request is for
    In Decision 268/2016, an authority refused a request on the grounds that complying would cost too much. We found that the authority had calculated the cost of providing information which had been manually checked - however, the requester only wanted raw, unchecked data. Authorities should make sure that their responses are based on the information actually sought by the requester.

    Requesters should also take time to ensure that a request is as clear as possible. This will help the authority understand and identify the information they want. Our Tips for Requesters can help.


  • Keep things clear
    It can sometimes be helpful for authorities to provide information which isn't covered by the request, but it should be made clear to the requester that this is what's happening. In Decision 267/2016, the authority disclosed some information which fell outside the scope of the request, but didn't explain this. The requester asked the Commissioner to investigate some matters relating to this information, not realising that she was unable to do so.


  • If an authority withholds information, it must explain why
    When information is withheld, authorities must tell the requester why. And if a case is appealed to us and an authority doesn't make submissions explaining why it thinks an exemption applies, we may order disclosure.

    In Decision 264/2016, we asked an authority to give us its reasons for non-disclosure, but it decided to disclose the information instead. If it had done this when the request was received, the authority would have avoided a decision against it.

    In Decision 262/2016, we criticised the quality of the submissions received from the authority ("speculative and potentially overstated") but we accepted that it had done enough to show why some information should be withheld.

    For obvious reasons, we are also unlikely to accept that exemptions will apply to information which is already in the public domain (Decision 266/2016).


  • Take care when sending large file attachments by email
    Most of us have a limit on the maximum size of an attachment we can send or receive by email. Decisions 272/2016 and 273/2016 look at cases where the authority said it had responded to a request for review, but the requester said they hadn't received the response. The authority had been having problems sending emails with attachments and couldn't evidence that the response had actually left its systems. When sending emails with a large amount of information, it's a good idea to check that the email has actually been sent - and to keep proof that it has.


  • Exemptions can't be applied to information an authority doesn't hold
    Another regular learning point in recent round-ups. Decision 275/2016 involves a request for numbers of referrals under a "Prevent" process, established to prevent people being drawn into terrorism.

    The authority refused to disclose the information, claiming it was exempt. When we asked the authority to provide us with the numbers of referrals, it told us that it didn't actually hold any recorded information that would answer the request, but that the answer could be deduced from its records. Section 73 of the FOI Act makes it clear that "information" means "recorded information". Information which can only be deduced from other information isn't recorded information. As such, we concluded that the authority didn't hold the information.


  • And finally…there's only 49 weeks until Christmas…
    Although it comes round every year, Christmas can have a habit of sneaking up on some of us… Decision 262/2016 reminds us that the festive period is hardly an unexpected or sudden event, so authorities should make sure they have arrangements in place to ensure that requests continue to be dealt with when the usual staff are absent.

    With this amount of notice, there should be plenty of time to ensure that appropriate procedures are in place for Christmas 2017…

Decisions issued:


  • Decision 262/2016 Gordon Tait and Scottish Fire and Rescue Service (SFRS)
    The SFRS was asked for a cultural survey report, with the staff opinions gathered as part of that survey. It disclosed some information. During the investigation, the SFRS disclosed more information, but continued to withhold some, arguing that disclosure would harm the free and frank exchange of views. While we identified deficiencies in the SFRS's handling of the request, we accepted its reasons for withholding the remaining information.


  • Decision 263/2016 James Duff and the Scottish Ministers
    The Scottish Ministers were asked why named Ministers were not responding to correspondence from the requester. They refused to disclose the information as it was the requester's own personal data and, therefore, exempt from disclosure under FOI. We found that the Ministers were entitled to do this.


  • Decision 264/2016 Jean Robb and Argyll and Bute Council
    Ms Robb asked for information about exam passes at Hermitage Academy between 2010 and 2016. The Council initially withheld the data for the year 2015-2016, arguing disclosure would harm the effective conduct of public affairs. During our investigation, it disclosed the information. We concluded that it should have done this in response to the request.


  • Decision 265/2016 The Applicant and the Office of the Scottish Charity Regulator (OSCR)
    OSCR was asked about specific complaints about workers at a Citizens Advice Bureau.
    OSCR stated that it held no information falling within the scope of the request. Following an investigation, we upheld this response.

  • Decision 266/2016 Paris Gourtsoyannis and the Scottish Police Authority (SPA)
    The SPA was asked for information about a meeting of its Finance and Investment Committee.  It withheld the information under exemptions relating to the effective conduct of public affairs. Some information was disclosed during the investigation. We accepted that the SPA was entitled to withhold some information, but did not agree that it was entitled to withhold the remainder. We required this to be disclosed. 


  • Decision 267/2016 ABW Consultants and West Lothian Council
    The Council was asked for information relating to planning at Whitrigg, East Whitburn. It considered the request under the EIRs, disclosing some information, and withheld other information which it considered to be personal data.  Our decision found that the Council was entitled to withhold some, but not all, of the information under the exception relating to personal data. We ordered it to disclose the non-exempt information.


  • Decision 268/2016 Claire Millar and the Scottish Ambulance Service Board (SASB)
    The SASB was asked for data about incident calls and response times. It refused to provide the information, stating that the cost would be excessive.  We concluded that the SASB had wrongly interpreted Ms Millar's request, and had considered the cost of providing information she had not asked for. We required the SASB to provide a different response.


  • Decision 269/2016 Mrs M Laing and Dundee City Council
    Mrs Laing asked for information about temporary traffic restrictions. The decision finds that the Council failed to respond to the request and requirement for review within the FOI timescales.


  • Decision 270/2016 Jason Rose and East Lothian Council
    Mr Rose asked for the minutes of the Musselburgh Joint Racing Committee (MJRC) for 2014, 2015 and 2016. The Council refused the request on the basis that it held the minutes on behalf of MJRC rather than on its own behalf. The Commissioner accepted that MJRC is a separate body from the Council and that the Council did not hold the minutes in its own right. This meant that the Council did not hold the minutes for the purposes of FOI.


  • Decision 271/2016 Daniel Sanderson and the Scottish Ministers (the Ministers)
    The Ministers were asked for a range of information relating to Naomi Eisenstadt's work as the Scottish Government's Poverty Advisor. Some information was withheld on the basis that disclosure would prejudice the effective conduct of public affairs. We disagreed and ordered the Ministers to disclose the information.

    During the investigation, the Ministers claimed that some of the information was already published, so didn't have to be disclosed. We disagreed.


  • Decisions 272/2016 and 273/2016 Angus Pattison and East Dunbartonshire Council
    The Council received two requests about the Bears Way Cycleway Project. It failed to respond to one of the requests within the statutory timescales, and also failed to comply with both requests for review within these timescales.


  • Decision 274/2016 Marc Ellison and the Scottish Ministers (the Ministers)
    Mr Ellison asked for copies of all documents relating to Susan O'Brien QC, former chair of the Scottish Child Abuse Inquiry. The Ministers said that complying with the request would cost more than the £600 limit (and so they were not obliged to comply). Mr Ellison did not accept that the costs were so high but, if they were, believed more help should have been given to allow his request to be narrowed.

    We were satisfied that the costs exceeded £600, but found that the Ministers failed to provide reasonable advice on narrowing the request.


  • Decision 275/2016 Marc Ellison and Police Scotland
    Police Scotland were asked about the number of referrals made under the "Prevent" Professional Concerns Process, established to prevent people being drawn into terrorism.  Police Scotland withheld the information under exemptions relating to national security, law enforcement and personal information. Following an investigation, we found that Police Scotland did not actually hold the information.


  • Decision 276/2016 Dave Sutton and City of Edinburgh Council
    Mr Sutton asked about the adoption of roads in housing schemes. The Council said the request was manifestly unreasonable due to the burden responding would create.  We accepted that the request was manifestly unreasonable and that the Council was therefore entitled to refuse it.


  • Decision 002/2017 Carolyn Neilson and NHS Greater Glasgow and Clyde (NHS GG&C)
    Ms Neilson asked about a staff grievance. We found that NHS GG&C was late in responding to the request and request for review and that it initially failed to identify all of the information falling within the scope of the request. However, we decided that the NHS was entitled to withhold some personal data.


  • Decision 003/2017 David Telford and North Ayrshire Council
    The Council was asked about a housing development in Fairlie, covered by a Section 75 Agreement (placing planning obligations on the development). The Council said parts of the request were manifestly unreasonable, but we disagreed: the Council had failed to demonstrate that the request was manifestly unreasonable so we required it to issue a different review response.

Resolved cases:

We resolved three cases in December without the need for a formal decision. The summaries below show some of the ways in which this was achieved.

  • The Commissioner didn't have the power to do what the requester wanted
    In one case, the requester believed that the information which had already been provided to him was inaccurate. He withdrew his application when we advised him that we could not reach a finding on whether the information was, in fact, accurate.

    It's important to remember that FOI provides a right of access to the information that is held by public bodies. The accuracy (or otherwise) of that information is not a matter which is covered by FOI law. Authorities should, of course, provide an explanation to requesters if they know the information they are disclosing may be inaccurate.


  • A further copy of a response was issued during the investigation
    A requester told us that an authority hadn't responded to their request or request for review. The authority was able to evidence that it had in fact responded. The requester withdrew their appeal when the authority sent them a further copy.


  • The requester was satisfied with the additional explanation given during the investigation
    During the investigation, the authority explained to the requester why it didn't hold the information they had asked for. The requester was satisfied with the explanation and withdrew their appeal.

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