Decisions Round-up: 23 to 27 July 2012

Scottish Information Commissioner, Rosemary Agnew, published four decisions this week.  The decisions were in response to applications made to her by requesters dissatisfied with the way in which Scottish public authorities dealt with their information requests under the Freedom of Information (Scotland) Act 2002 (the Scottish FOI Act).

Key messages

  • Refer to specific evidence when applying exemptions

One of our decisions this week upheld the use of the exemption in section 30(c) (substantial prejudice to the conduct of public affairs).  The authority referred to clear, compelling evidence that it would be unable to meet a legal obligation if the information was released.  This was in contrast to what we often see - authorities giving vague or general assertions of likely prejudice.  Make sure you present specific evidence to support the use of an exemption and that you refer to it in your explanations and reasoning.  If you do not have such evidence, ask yourself if the exemption really applies.

If you are a requester and you make an application to us, try to explain why you do not accept the authority's explanation, why you think it is incomplete or too vague, or why you think you have more compelling arguments that favour the release of information.

  • Consider whether information can, and should, be released even when an exemption applies

There may be occasions when although you can withhold information, as an authority you can consider whether to release it anyway.  Think about whether it would be good practice under the organisation's customer service charter to release information ? but do so carefully, making sure you do not accidentally release something you shouldn't, such as personal data.

  • Respond promptly if the Keeper of the Records contacts you for support

The Keeper of the Records of Scotland is responsible for Scotland's archives. He has 30, rather than the normal 20, working days to respond to requests for information which has been transferred to him.  If the Keeper contacts you for your views on whether information transferred to the National Archives of Scotland should be released, you must respond promptly to help him meet the 30 day deadline - and to comply with your duties under s22(3).

  • Remember! General medical practices are covered by the FOI Act

Many people do not realise that GPs are covered by the Scottish FOI Act - we receive very few applications relating to medical practices.  Don't forget you can ask your GP for information that they hold ? although remember that your own personal data, such as your medical records, are accessible under data protection laws rather than FOI.

Summary of key decisions

  • South Lanarkshire Council makes a well-evidenced case that release will cause substantial prejudice to the conduct of public affairs (Decision 120/2012)

Stonehouse Community Council asked South Lanarkshire Council for details of establishments it used to provide bed and breakfast accommodation to homeless people.  The Council withheld the address of one of the two establishments which it used, because it had evidence that the establishment would withdraw the service if its address was released.  Given the Council has a legal duty to provide accommodation to homeless people, it had real concerns that releasing the information would prejudice substantially its ability to perform its functions.  The Commission accepted that there was compelling evidence that this was the case.

  • OSCR demonstrates that, even where an exemption applies, the authority may decide to provide the information anyway in certain circumstances (Decision 121/2012)

Mr Colquhoun asked the Office of the Scottish Charity Regulator (OSCR) for copies of its correspondence with a particular charity ? including a copy of that charity's constitution.  OSCR correctly withheld the correspondence requested, under section 35(1)(g) giving clear reasons why disclosure would substantially prejudice the exercise of its functions in relation to the protection of the charity and its property against mismanagement.

OSCR correctly applied the exemption in section 25(2)(b)(i) to the charity's constitution which it could have withheld because it was reasonably obtainable to Mr Colquhoun under other laws, giving him a statutory right to obtain it from the charity itself.  Although it could have withheld it, OSCR chose to provide a copy of the constitution to Mr Colquhoun, applying its judgement ? which it had a right to do in this case ? on whether to give it out anyway.

  • Determining whether information is "held" by the Keeper of the Records of Scotland for the purposes of FOISA (Decision 124/2012)

Mr Horne applied to us for a decision relating to a request he made to the Keeper of the Records of Scotland (the Keeper) for information transferred to him by the Scottish and Westminster governments.  The first challenge was to decide what information was "held" by the Keeper for the purposes of the Scottish FOI Act[1].  We met with both the Scottish and UK Governments to work through this, and concluded that only one of the requested files contained information held by the Keeper which was subject to the Scottish FOI Act.  We agreed that some of the information in that file should be withheld under section 38(1)(b) of the Scottish FOI Act (personal information), and the Keeper agreed to release the rest.

It's worth noting that the Keeper has 30 working days in which to respond to requests for information which has been transferred to him, to allow him to consult with the authorities concerned.  In this case, he did not meet that deadline because of delays in public authorities responding to him.

  • GP Practice correctly refuses request on cost grounds, but provides positive advice and assistance (Decision 123/2012)

Mr McFadyen asked the Blue Suite Medical Practice (the Practice) for information including the number of warning letters issued to patients in a particular time period.  The Practice told him that exact figures could not be provided, as the cost of doing so would be too high.  They attempted to help Mr McFadyen by estimating the frequency with which warning letters were issued ? a positive example of providing advice and assistance.  Although there were some technical shortcomings in the Practice's responses, we accepted that the Practice did not have to comply with Mr McFadyen's request, as the cost of doing so would exceed the statutory limit of ?600.

[1] Information which has been transferred to the Keeper by Westminster is usually accessible through the UK rather than the Scottish legislation, except in very limited circumstances.

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