Decisions Round-up: 3 to 7 March 2014

There were twelve decisions published again this week, with some interesting learning points.   Read them below.


Key messages:

  • Failing to meet your FOI obligations will harm the perception of your organisation
    Failing to meet your statutory duty to respond to requests under FOI and the EIRs will harm the public's perception of your organisation. In Decision 040/2014, an authority took over six months to respond to a request for review. This action was not only in breach of the legislation but, as was clear from the correspondence we received, also led to the requester's trust and confidence in the authority being damaged.


  • The 20 working day "clock" won't stop if a request for review requires clarification
    If clarification is needed to respond to an initial request, the 20-working day "countdown" will stop until the clarification is received. It is important to remember that there is no equivalent provision for requests for review. Provided the request for review is valid, the clock will keep running, regardless of whether further clarification is required.


  • If information can be reasonably accessed through other means, an authority will not have to provide it under FOI…
    In Decision 043/2014 we concluded that the authority was right to rely on the section 25 exemption (information otherwise accessible), because the information sought by the requester could be accessed by the requester from the authority's website.


  • …but remember to consider the circumstances of the requester
    Before applying the section 25 exemption, remember to consider the circumstances of the requester. Will information be reasonably accessible to that particular individual? There may be circumstances where access to information is limited, such as where the requester is a prisoner with little or no internet access. Authorities must ensure they have alternative arrangements in place.


  • When identifying information in response to a request, make sure it is relevant
    In Decision 050/2014 the authority withheld a range of information in response to a request about a construction site. Our investigation found that, while the withheld information related to the site, it was not the information that the requester was seeking, and was therefore not covered by his request. Authorities can save a lot of time, both for themselves and for the requester, by ensuring that the information they consider is relevant to the request.


  • Search all appropriate sources
    In Decision 051/2014, additional requested information was found on a memory stick during our investigation. When searching for information take reasonable steps to ensure you identify all the information that is held.


  • The focus of an appeal is clearly defined
    The right to information under FOI and the EIRs only applies to the information that is held by an authority. The Commissioner's investigations can therefore only consider requests in terms of that information. We are not able to consider issues such as why other information is not held, or how long it should have been retained. In Decision 051/2014, while the requester was unhappy that additional information was not held, this fell outside of our remit.

Decisions issued:


  • Decision 040/2014 - Mr Alisdair MacPherson and the Scottish Ministers
    In July 2012 Mr MacPherson asked the Scottish Ministers for legal advice held in relation to an independent Scotland's membership of international organisations. The Ministers initially responded by refusing to confirm or deny whether information existed. Mr MacPherson requested a review, with the Ministers taking six months to respond to the review request, significantly exceeding the 20 working day statutory requirement. On review, the Ministers confirmed that they held information, but that it was exempt from release under the exemption protecting confidential legal information (section 36(1)). Our investigation concluded that the Ministers were, at the time of their review, entitled to withhold the information under this exemption. We also found that the Ministers had failed to respond within the required timescales.


  • Decision 041/2014 - Mr James Angus and Angus Council
    The Council responded to Mr Angus' request for information about a local bus stop by informing him that no relevant information was held. Our investigation agreed with this conclusion, but we also found that the Council had failed to respond to Mr Angus' request for review within the 20 working day timescale.


  • Decision 042/2014 - Mr Paul Hutcheon and the City of Edinburgh Council
    The Council disclosed some information in response to Mr Hutcheon's request for information about scaffolding work, and withheld the remainder. The withheld information was subsequently disclosed during our investigation.


  • Decision 043/2014 - Mr K and West College Scotland
    The College responded to Mr K's request for information about its policies and procedures by referring him to information published on its website. Our investigation concluded that the information was indeed on the Council's website, and that the college was therefore entitled to rely on the section 25 exemption (information otherwise accessible).


  • Decision 044/2014 - Mr B and the Scottish Prison Service (SPS)
    Mr B requested information relating to the running of a hobbies work shed in HMP Edinburgh. Some information was provided, with the SPS informing Mr B that no further information was held. Our investigation found that the SPS had provided all relevant information, while also providing appropriate additional advice and assistance.


  • Decision 045/2014 - Mr John Steel and Glasgow City Council
    Mr Steel asked for information about work undertaken at a site in Glasgow. The Council informed him that it did not hold the information. Information was subsequently identified and disclosed during our investigation, with some other information withheld under the EIR exception which protects confidential commercial information (regulation 10(5)(e)). We agreed with the Council's assessment that this information fell within the scope of the EIR exception.


  • Decision 046/2014 - Mr L and Stirling Council
    Mr L asked Stirling Council for information about the Glenochil Prison Visiting Committee. We agreed with the Council that it did not hold the information requested.


  • Decision 047/2014 - Mr William Lonsdale and Aberdeen City Council
    The Council failed to respond to Mr Lonsdale's request for a review within 20 working days. This decision requires the Council to provide a response.


  • Decision 048/2014 - Mr J and the Scottish Prison Service (SPS)
    Mr J asked for information about the number of prisoners who had been recalled for reoffending. The SPS informed Mr J that responding to the request would exceed the £600 upper limit under FOI. Following our investigation, we agreed with this assessment.


  • Decision 049/2014 - Graham and Avril Fisher and Falkirk Council
    This decision finds that the Council failed to respond to Mr and Mrs Fisher's request for information about school examination grades within the FOI Act's 20 working day timescale.


  • Decision 050/2014 - Mr James Noble and South Lanarkshire Council
    Mr Noble asked for information about site access for a local construction site. The Council withheld the information under the EIR exception which protects an individual's personal data. Our investigation found that the Council incorrectly identified the withheld information as relevant to Mr Noble's request, and that the Council did not hold information which fell within the scope of that aspect of the request. We also found that the Council had failed to provide a response to another aspect of Mr Noble's request, and required it to do so.


  • Decision 051/2014 - Paul Bova and Highland Council
    Mr Bova asked for information about a local housing development. The Council provided information in response, but Mr Bova was dissatisfied, believing more information should be held, and appealed to the Commissioner. Additional information was identified during our investigation and provided to Mr Bova. At the close of our investigation, we concluded that all relevant information had been provided.

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