Decisions Round-up: 26 to 30 September 2016

 Did you know that deleted information might still be "held" for FOI? As this week's round-up sets out, it will, as always, depend on the circumstances…

Learning points:


  • Deleted information might still be held…
    Decision 201/2016 looks at whether deleted electronic information is still held for the purposes of FOI. As ever, much will depend on the circumstances of the case. In this case, the authority was able to satisfy us that it no longer held the information.


  • In FOI, information means recorded information
    In Decision 198/2016, the requester wanted to know if the authority's IT systems had been infected with ransomware. The authority refused to disclose any information, arguing that disclosure would harm the prevention or detection of crime. In fact, the authority didn't hold any recorded information about ransomware infections and so shouldn't have applied an exemption. The authority knew no attacks had taken place, but didn't hold any recorded information which confirmed that was the case. The correct response would either have been to tell the requester it didn't hold any information (and explain why) or to refuse to confirm or deny whether it held the information.


  • Legal advice can be withheld even if the outcome of the advice is public
    Legal advice can be withheld (subject to the public interest test) if it remains privileged. In Decision 199/2016, the requester argued that privilege had been lost because the authority had referred publicly to the outcome of the advice. We found that the advice remained privileged - although the outcome of the advice had been made public, the content of the advice hadn't.


  • Carry out appropriate searches or the Commissioner will order you to redo them
    Decision 200/2016 reinforces the need for authorities to carry out adequate searches when they receive information requests. When we asked to see the withheld information, the authority provided only a limited amount of information. Additional information was later provided in response to our investigation questions. The authority couldn't satisfy us that it had carried out adequate searches. This led to us ordering the authority to carry out additional searches and either to provide new information to the requester or notify him which exemptions it was relying on to withhold the information.

Decisions issued:

  • Decision 197/2016 Andrew Brunton and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Mr Brunton asked Police Scotland about an incident that had taken place in Dundee. Police Scotland refused to disclose some of the information, arguing that disclosure would substantially prejudice the prevention or detection of crime and the apprehension or prosecution of offenders. They also told Mr Brunton they did not hold some of the information he had asked for. We agreed on both counts.


  • Decision 198/2016 Geoff White and Glasgow City Council
    Mr White asked the Council if any of its IT equipment had been infected with ransomware in the past three years. The Council told Mr White that this information was exempt from disclosure. During the investigation, it became clear that the Council didn't actually hold any recorded information which would answer Mr White's request. The Council should either have told Mr White it didn't hold the information - or used section 18 to refuse to confirm or deny whether it held the information.


  • Decision 199/2016 Francis Mordaunt and Scottish Borders Council
    This was a request for legal advice obtained by the Council in connection with a proposed development. The Council initially responded to the request under the FOI Act, when it should have responded under the Environmental Information Regulations. However, we were satisfied that the advice did not have to be disclosed, despite the fact that the Council had publicly referred to the outcome of the advice.


  • Decision 200/2016 Mark McLaughlin and Scottish Police Authority (the SPA)
    Mr McLaughlin asked the SPA about the forecast overspend in the Police Scotland revenue budget. The SPA refused to disclose the information. We weren't satisfied that the SPA had identified all of the information it held which fell within the scope of Mr McLaughlin's request. We ordered it to disclose the additional information to Mr McLaughlin - or to provide a notice to him making it clear what information it was withholding under which exemption.


  • Decision 201/2016 Mr E and Scottish Prison Service (the SPS)
    Mr E asked the SPS for the information a named member of staff had obtained from a number of online searches. We accepted that the SPS did not hold the information.


  • Decision 202/2016 Jon Owens and Scottish Legal Aid Board (SLAB)
    Mr Owens asked whether a named person had received funding from SLAB. SLAB refused to confirm whether or not the person had received legal aid on the basis that the information, if held, would be personal data which was exempt from disclosure and that it was not in the public interest to confirm if it held the information. We agreed with the approach taken by SLAB.



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