Decisions Round-up: 21 October to 1 November 2013

Ten decisions were published in the last fortnight.


Key messages:


  • The Commissioner’s investigations focus on a specific point in time
    When considering an appeal, the Commissioner must consider the situation at the time the public authority carried out the review of its handling of the request.  This is because our investigations examine whether a public authority acted correctly in its handling of the case. 

    If circumstances change following the review, we are unable to take this into account.  However, if a requester thinks that a situation has changed enough to merit a different outcome, they can ask for the information again at a later time.  Likewise, authorities are encouraged to publish information which is no longer sensitive where there is a public demand for it. 


  • Seniority is an important factor when considering many requests about staff
    Seniority will be an important factor when considering many, but not all, requests about a public authority’s staff. In Decision 230/2013, while we found that the Scottish Ministers had been right to withhold information which would reveal the identity of junior staff that had received hospitality, we found that similar information about senior staff should be disclosed. However, we also found that the Ministers had correctly withheld information which would identify staff that had (or had not) received performance payments at all levels. We found that it was reasonable for all staff to expect that their performance appraisal information should be confidential.


  • Remember that FOI rights only apply to recorded information
    When requesting information, remember that the FOI Act only applies to information which is recorded and held by an authority e.g. in a report, spreadsheet, email or recording. In Decision 231/2013 our investigation found that while a discussion on the subject of the request had taken place, no information had been recorded. Nevertheless, the authority in this case helpfully provided the requester with an additional explanation of the matter to help them better understand the issues at hand.


  • Are all your procedures fit for effective FOI?
    In Decision 234/2013, an authority failed to respond to a request for review within 20 working days as a result of an administrative failure in its processes. While the authority’s IT system was used to calculate the 20 working day FOI response time, in this case the correspondence was not entered into the system until a few days after receipt, meaning that an incorrect response date was generated.Could the same thing happen in your FOI system?


  • When refusing requests because they exceed the upper limit, remember to advise and assist!
    The Commissioner required the authority to take further action in Decision 232/2013, because although it had correctly refused the request on the basis of section 12 (excessive cost), it had failed to advise the requester what might have been provided within the upper limit. Early advice on what might be provided within the upper limit can often ensure a satisfactory resolution to such cases.


Summary of decisions:


  • Decision 229/2013 - Mr Alistair Sloan and the Scottish Ministers
    Mr Sloan asked the Ministers for information relating to deliberations around Part II of the Scottish Civil Justice Council and Criminal Legal Assistance Bill.  Part II of the Bill concerned criminal legal assistance, and included proposals for individuals to contribute towards their legal aid in criminal cases.  Some information was provided by Ministers, and Mr Sloan was also directed to information which was publicly available.  The remaining information was withheld under various FOI exemptions.  We found that Ministers were entitled to withhold all the outstanding information as disclosure would be likely to harm the effective conduct of public affairs (section 30 of the FOI Act), and the public interest favoured non-disclosure.


  • Decision 230/2013 - George Watson and the Scottish Ministers
    Mr Watson requested information about performance payments and hospitality received by staff.  Some information was provided and some was withheld under the FOI exemption protecting personal data.  Our decision found that the Ministers had been entitled to withhold information which would identify the recipients of performance payments or junior members of staff who had received hospitality, but that other information should be disclosed. 


  • Decision 231/2013 - Mr P Gregson and the City of Edinburgh Council
    The Council responded to Mr Gregson’s request for information about an Equality and Rights Impact Assessment by informing him that no information was held.  Our investigation found that, while the matter had been discussed by Council staff, no recorded information was held.  We therefore found that the Council had dealt correctly with Mr Gregson’s request.


  • Decision 232/2013 - Mr N and East Lothian Council
    The Council withheld some information relating to redundancy payments paid to specific senior officials.  We agreed that the Council had been correct to withhold some information under the FOI exemption protecting confidential information, and that it had also acted correctly in concluding that responding to one of Mr N’s requests would exceed the £600 upper limit.  However, we required the Council to provide further advice and assistance to Mr N, having failed to provide appropriate advice during its initial handling of the request.


  • Decision 233/2013 - Stuart James and Highland Council
    Mr James requested information regarding drainage work undertaken by the Council.  Following investigation, we agreed with the Council’s conclusion that the requested information was not held.


  • Decision 234/2013 - Frances Thompson and the City of Edinburgh Council
    A technical decision concerning the Council’s failure to respond to a request for review within the FOI Act’s 20 working day timescale.


  • Decision 235/2013 - Mark McLaughlin and the Scottish Ministers
    Mr McLaughlin requested a copy of legal advice received by the Ministers on the position of an independent Scotland within the European Union. The information was withheld under section 29(1)(c) of the FOI Act, which protects advice which has been received by the Ministers from their Law Officers. Our investigation concluded that the Ministers had acted correctly in the circumstances of this case, and that the public interest favoured the non-disclosure of the information.  In coming to her decision on the public interest, the Commissioner took into account the fact that the Ministers had publicly stated that their independence White Paper (now scheduled for publication on 26 November) will set out the Ministers’ position, informed by the Law Officers advice, on EU membership. 


  • Decision 236/2013 - Firrhill Community Council and the City of Edinburgh Council
    This decision concerns an application made in relation to the Council’s alleged failure to respond to a request or request for review.  While our decision found that the Council had indeed failed to respond to the initial request within 20 working days, the Council was able to satisfy the Commissioner that, on the balance of probabilities, a review response had been sent (even if it did not appear to have been received by the requester).    


  • Decision 237/2013 - David Kattenhorn and Fife Council
    This case concerned an EIR request for information about gates placed on a public right of way.  The Council withheld some information, citing the EIR exceptions that protect internal communications and confidential information.  Our investigation concluded that some of the information had been incorrectly withheld, and we required its disclosure.


  • Decision 238/2013 - Roy Mackay and Midlothian Council
    A second technical case in which we considered whether or not a response had been sent.  In this case, we again concluded that, on the balance of probabilities and considering the evidence supplied by the Council, that the response had been sent.  We also found that the authority had received a request for review, informed by evidence supplied by Mr Mackay.

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