Decisions Round-up: 6 to 10 August 2012

 Scottish Information Commissioner, Rosemary Agnew, published six decisions this week, in response to applications made to her by requesters dissatisfied with the way in which a Scottish public authority had dealt with their information requests under the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Key messages

  • Keep evidence of your searches

When you are looking for information in response to a request, keep a log of all the searches you undertake, e.g. where you searched, who conducted the search and, if electronic, what search terms you used, and the outcomes. If a case is appealed to us because you say you don't hold the information, we'll ask you to show that you have conducted adequate searches. If you already have evidence to hand it will save time and effort, and make it more likely that we'll not ask you to conduct further searches which could potentially result in information being located. The benefits to the authority are greater efficiency (getting it right first time) and not having an appeal upheld against you.

  • An acknowledgement or apology is not a proper response under FOI laws

You are entitled to a proper response under Scotland's FOI laws ? if an authority keeps writing to you, apologising and promising to respond, and then delays, you have the right to ask them to review the request, and then to appeal to us. The quicker you make an appeal to us, the quicker we can issue a decision compelling an authority to respond to you. For authorities it can often be difficult to respond within timescales, and while it is good customer service to keep people informed of progress, the timescales under FOISA are statutory. More details about timescales can be found on our website here: How long will I have to wait?

  • Robust procedures and well trained staff can help you meet deadlines

Applications about technical failings by an authority are very often avoidable. Responding to a request on time is helped by clear procedures, active case recording and effective workload management. Monitoring work and internal deadlines is only part of the story though ? make sure your organisation identifies requests quickly, has given the person responding sufficient authority to get information from colleagues, and involves people at the earliest opportunity.

  • Consider vexatious requests on a case by case basis

The decision to make a request vexatious is rarely easy for an authority as it is effectively denying someone a right set out in FOI legislation. For us to uphold an authority's approach it must, as did both the decisions below, provide clear reasons supported by evidence, explaining why they considered a request to be vexatious. Each case should be considered on its own merits: it is not enough for there to simply be a long line of correspondence with the authority. We accepted "significant burden" in the Minister's decision below on the basis of extended and prolonged correspondence about what was essentially the same issue.

  • An individuals' personal data attracts strong protection from release

If you make an application to us because information has been withheld as 'personal data' or because to release it would let you identify a person, we are unlikely to ask an authority to release it. This is because to release the information to you under FOISA is to release it into the public domain and would be unfair to the person identified.  For authorities, some types of requests can be tricky to deal with in terms of personal data. For example, with requests for information about complaints, be careful as it can be difficult to disclose even parts of the complaint without identifying who made it. Where the complainers were organisations rather than individuals, then it is much more likely that information about the complaint can be disclosed ? here a complaint made by Scottish Natural Heritage was disclosed by the Council during the investigation.


Summary of decisions

  • Scottish Prison Service satisfies Commissioner that it does not hold policy on "snack packs" (Decision 125/2012 Mr N and the Scottish Prison Service)

An applicant asked the Scottish Prison Service (SPS) for its policies and Government and Manager's Action Notices (known as GMAs) on the provision of "snack packs" and clothing for prisoners. GMAs are issued by the SPS when there are issues it wants to advise Governors and Managers about. In Scotland, individual prisons make their own arrangements for providing snack packs, and the SPS advised the applicant that they did not hold a policy or any GMAs. The Commissioner accepted the SPS's position, as it was able to provide detailed evidence of the comprehensive searches it had undertaken, which included a rigorous electronic search and enquiries to relevant staff. The information on prisoner clothing was already available in the Prison Rules.

  • Ministers ordered to respond after six months delay (Decision 126/2012 Mr Carrell and the Scottish Ministers)

In September 2011, an applicant asked for information about Torness and Hunterston Power Stations, narrowing the scope down at Ministers' request in October. Ministers extended the response time to 40 working days, which is possible under the EIRs if a request is particularly complex or involves a lot of information. By December the applicant had still not received a response so asked for a review. After six months of correspondence, during which Ministers promised to respond several times but did not do so, the requester finally appealed to us. The Commissioner ordered Ministers to respond to the applicant's request for a review.

  • SPS correct to find a request for CCTV footage vexatious (Decision 127/2012 Mr Q and the Scottish Ministers)

Here, the applicant wanted CCTV footage of an internal postbox in a prison, because he wanted to check whether an item posted on 2 December was collected that day, given that the recipient did not receive it until 6 December. The SPS refused to comply with the request because it was vexatious. The Commissioner supported this view, concluding that the request was not proportionate or reasonable, and that it lacked serious purpose or value. The full decision sets out further details of the Commissioner's reasoning.

  • Ministers failed to provide substantive response (Decision 128/2012 Mr X and the Scottish Ministers)

An applicant appealed to us because, despite extending the timescales to respond to a request for information under the EIRs, Scottish Ministers failed to meet the statutory timescales by a considerable margin. The request was made to the authority on 7/10/11, a request for a review on 1/12/11 and finally appealed to us on 26/6/12. We upheld the appeal finding that the Scottish Ministers had failed to comply with the technical requirements of the FOISA and EIRs.

  • Council correctly withholds personal data (Decision 129/2012 Mr MacKenzie and Highland Council)

Mr MacKenzie asked Highland Council (the Council) for details of complaints made about activities at Ledgowan Estate in Wester Ross. The council provided information about the complaints, but withheld personal information about the complainers under section 38(1)(b) of FOISA because disclosure would breach the first data protection principle. We agreed that the Council was right to do so.

  • Ministers find requests vexatious (Decision 130/2012 Mr U and the Scottish Ministers)

A requester made two requests to the Scottish Ministers (the Ministers) relating to psychiatric treatment and medication, and the Ministers' decision to appeal against a particular decision by the Mental Health Tribunal. The Ministers refused them both because they were vexatious ? an approach the Commissioner supported.


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