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Decision 064/2019:  Mr S and the Scottish Prison Service

 Restricted regime at HMP Edinburgh on specified dates

 Reference No:  201802099
 Decision Date: 17 April 2019

Summary

The SPS was asked for information on prisoner numbers held within CCTV recordings, together with information concerning a "restricted" regime and a refusal to facilitate peer tutoring in a specific area on particular dates.

The SPS withheld the information from CCTV images under section 35(1)(f) of FOISA, while stating the images were no longer available. For the other parts of the request, the SPS stated it held no information falling within scope.

The Commissioner investigated and found that the SPS had partially breached FOISA in responding to the request. While he was satisfied that the SPS held no information on the "restricted" regime, or the refusal to facilitate peer tutoring, he found that the SPS had failed to identify the information held within the CCTV recordings as falling within scope, and had failed to secure the CCTV footage. The Commissioner also found that the SPS failed to provide adequate advice and assistance to aid understanding of a further response it had issued. He did not require the SPS to take any action.

 Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (4), (5) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 15 (Duty to provide advice and assistance); 17(1) (Notice that information is not held); 35(1)(f) (Law enforcement)

The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision. The Appendix forms part of this decision.

 Background

1. On 18 March 2018, Mr S made a six-part request for information to the Scottish Prison Service (SPS), concerning restrictions within HMP Edinburgh on specified dates. This included:

· Part 3 of request: RFLM [name redacted] has indicated that only residential passmen were unlocked during the designated peer tutoring period 10:45-11:30. Please provide me with information (held within CCTV recordings of IL3) as to the number of prisoners unlocked and undertaking any activities within IL3 during the period 10:45-11:30. Please advise me as to the number of residential passmen within IL3 as of 17 March 2018 (i.e. not including [information redacted]). The information sought within this element (3) of the request concerns only Ingliston Level 3 (IL3) South.

· Part 5 of request: Please provide all and any information held by the SPS in terms that a "restricted" regime was operating within Ingliston House on Saturday, 17 March 2018.

· Part 6 of request: In responding to PCF1 complaint [number redacted], RFLM [name redacted] issued email advice to all Ingliston staff in terms that, "As a consequence of some recent situations where the [peer tutoring] provision has been curtailed, in future can Ing 3 staff ensure that Ingliston FLM is informed immediately it is deemed necessary for Operational reasons to prevent learning from taking place." Please provide all and any information held by the SPS in relation to the refusals on 17 and 18 March 2018.

2. On 20 March 2018, in relation to Part 3 of the request, the SPS asked Mr S to clarify whether he required the information held on CCTV recordings only for 17 March 2018.

3. Mr S responded on 21 March 2018, reiterating that the element of the request seeking information held within CCTV recordings concerned only the claim by the RFLM relative to events on Saturday, 17 March 2018.

4. On 17 April 2018, the SPS responded as follows:

· For Part 3 of the request, the SPS provided the number of passmen employed on IL3 South on 17 March 2018. It informed Mr S that CCTV images were not permitted to be viewed unless a crime had, or was likely to have been, committed and so the facility was not available for the purpose requested. The SPS stated that, having checked other sources, it did not hold any other records of the number of prisoners unlocked at the relevant times and their activities.

· For Parts 5 and 6 of the request, the SPS informed Mr S that, following a search of paper and electronic records, it had established that the information requested was not held.

5. On 9 May 2018, Mr S wrote to the SPS, requesting a review of its decision on the following basis:

· For Part 3 of the request, Mr S commented that the circumstances under which CCTV footage might be viewed were not known to him. However, he argued that, as the SPS did not appear to disclose a reason, in terms of any exemption under FOISA, for refusing to disclose the information, it should now be disclosed.

· For Part 5 of the request, Mr S stated he was aware information about regime restrictions was recorded within documents such as "staff shortage protocol" flowcharts. He therefore believed SPS protocols anticipated that information of this nature should be held in the event that the SPS was correct to cite a "restricted" regime on the occasion in question. As such, he was not satisfied that a proper search for the information had been carried out.

· For Part 6 of the request, Mr S stated he was in receipt of SPS representations regarding inability to support peer tutoring activities within residential areas, stating that residential staff were to email the RFLM in advance where such circumstances arose. As such, he was not satisfied that a proper search had been conducted for this information.

6. The SPS notified Mr S of the outcome of its review on 5 June 2018, upholding its original decision with modifications:

· For Part 3 of the request, the SPS withheld the information requested under section 35(1)(f) (Law enforcement) of FOISA. The SPS considered the general public interest in prisons was outweighed by that in ensuring the systems were not subverted beyond the purpose for which they operated, i.e. security and good order. The SPS further clarified that the CCTV images were no longer available due to the system automatically overwriting the storage device.

· For Parts 5 and 6 of the request, the SPS stated that, having contacted all those who might hold information, to date no information had been identified (noting that not all relevant individuals had responded, for various reasons).

7. On 3 December 2018, Mr S wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA. Mr S stated he was dissatisfied with the outcome of the SPS's review because:

· For Part 3 of the request, he argued that the SPS had failed to explain how disclosure could pose a threat to the good order and discipline of the prison. He disagreed that disclosure would have the effect envisaged by the SPS. Mr S further contended that the SPS had given no regard to the kind of information being requested when applying the exemption.

· For Parts 5 and 6 of the request, Mr S contended that while the SPS had acknowledged some staff might have held information, it failed to take adequate steps to ensure that any information held was secured and disclosed.

8. Mr S believed the SPS had improperly withheld information falling within scope and had failed to take appropriate steps to safeguard and disclose that information.

 Investigation

9. The application was accepted as valid. The Commissioner confirmed that Mr S had made a request for information to a Scottish public authority and asked the authority to review its response to that request before applying to him for a decision.

10. On 10 January 2019, the SPS was notified in writing that Mr S had made a valid application. The SPS was asked to ensure the relevant CCTV footage (for Part 3 of the request) was retained. The case was allocated to an investigating officer.

11. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application. The SPS was invited to comment on this application and to answer specific questions. These focussed on the searches carried out to identify and locate the information requested. For Part 3 of the request, the SPS was also asked to comment on its reliance on section 35(1)(f) of FOISA and on the retention of CCTV footage.

12. Mr S was also invited to comment on the public interest in disclosing the information requested in Part 3.

13. Both parties provided submissions to the Commissioner.

14. During the investigation, on 8 March 2019, the SPS provided Mr S with some information in connection with Part 3 of his request. It informed Mr S that while it did not consider this to be the information he had requested, it was indicative of the information held at that time and was provided to advise and assist him.

 Commissioner's analysis and findings

15. In coming to a decision on this matter, the Commissioner has considered all of the withheld information and the relevant submissions, or parts of submissions, made to him by both Mr S and the SPS. He is satisfied that no matter of relevance has been overlooked.

16. In terms of section 1(4) of FOISA, the information to be provided in response to a request under section 1(1) is that falling within the scope of the request and held by the authority at the time the request is received.

17. The standard of proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities. In determining where the balance of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority. He also considers, where appropriate, any reason offered by the public authority to explain why it does not hold the information. While it may be relevant as part of this exercise to explore expectations about what information the authority should hold, ultimately the Commissioner's role is to determine what relevant recorded information is (or was, at the time the request was received) actually held by the public authority.

 Parts 5 and 6 of request

18. Under section 17(1) of FOISA, where an authority receives a request for information it does not hold, it must give the applicant notice in writing to that effect.

19. In this case, the SPS informed Mr S, in both its initial response and its review outcome, that it did not hold the information he had asked for in Parts 5 and 6 of his request. The SPS maintained this position in its submissions to the Commissioner.

20. The Commissioner has taken account of the arguments in both Mr S's requirement for review and his application, in which he provides reasons as to why he considers the SPS should hold information falling within the scope of these parts of his request.

21. The SPS confirmed that it held no information falling within the scope of Parts 5 and 6 of Mr S's request. It explained the searches and enquiries it had undertaken, with explanations of why it considered these adequate in the circumstances.

22. In its submissions to the Commissioner, the SPS explained that the restriction on the regime was a routine operating matter, guided by a protocol. Had this not been the case, it would have expected information to have been recorded in the manager's diary, kept in the accommodation block. The SPS confirmed the diary had been checked but no information was identified.

23. The SPS submitted that the reasonable searches to be conducted would be of emails between managers, or between managers and staff. At both initial request and review stages, the manager on duty (the RFLM referred to above) had been contacted and confirmed that no emails were held regarding the restriction to the regime or curtailing of peer tutoring. The SPS submitted that had any information been held, it would have been held by the manager on duty.

24. The SPS further submitted that the only other potential location would be a local SharePoint site where risk assessments were stored: no risk assessments had been found for the period stipulated in the request.

25. Noting Mr S's comment that it had failed to fully secure any information that might have been held by staff who had not responded to the request for searches, the SPS believed a reasonable search had been undertaken, given the narrow focus of the circumstances and the request. It explained that there was generally no requirement to record information where there was a protocol for handling a dynamic and frequent occurrence, as those involved all understood the necessary actions to be taken.

26. The SPS was asked to ensure that the outstanding searches were conducted by those staff who had not initially responded. With one exception (due to staff absence), these searches were carried out but no information was identified. The SPS submitted that given the circumstances and the results of all searches carried out, this was sufficient to conclude that no information was held.

The Commissioner's view - Parts 5 and 6 of request

27. Having considered all relevant submissions and the terms of the request, the Commissioner is satisfied that the SPS took adequate, proportionate steps in the circumstances to establish whether it held any information that fell within the scope of Parts 5 and 6 of Mr S's request. He has considered the reasons provided by the SPS to explain why it is not always deemed necessary to record information in circumstances where a well-established protocol is being followed. While noting that it was not possible to contact one member of staff, the Commissioner is satisfied that the searches described by the SPS would have been capable of identifying any information held and relevant to these parts of the request. The Commissioner is therefore satisfied, on the balance of probabilities, that the SPS does not (and did not, on receipt of the request) hold any information falling within the scope of Parts 5 and 6 of Mr S's request.

28. By giving notice under section 17(1), therefore, the Commissioner is satisfied that the SPS responded to Parts 5 and 6 of Mr S's request in accordance with Part 1 of FOISA.

 Part 3 of the request

29. In his application to the Commissioner, Mr S submitted that the SPS's initial response failed to cite a valid exemption for refusing to disclose the information and that, in citing section 35(1)(f) in its review outcome, it had failed to explain how disclosure of the information could have resulted in the harm claimed.

30. Mr S confirmed that his request did not seek the actual CCTV footage, but rather the information held within those recordings concerning the number of prisoners unlocked and undertaking any activities within the area and timeframe specified. He explained that he had pointed out, in his request, that the information would be held in the CCTV recordings, so as to ensure that steps could be taken by the SPS to secure the information, as required by FOISA.

31. Mr S provided the Commissioner with his views on why he believed the information had been wrongly withheld under section 35(1)(f) of FOISA. He provided evidence in support of his view that the kind of information he had requested, held within CCTV recordings, could legitimately be made available.

32. The SPS was asked to confirm what information it held when it considered Mr S's initial request and request for review, and whether it considered any information held fell within the scope of the Part 3 of Mr S's request.

33. In its submissions to the Commissioner, the SPS confirmed that at the time of Mr S's request, the CCTV footage was held. However, due to staff absence, and a misunderstanding on the part of the individual responsible for securing the CCTV footage, it had not been retained and had been overwritten. The SPS explained that all CCTV recordings were routinely overwritten every 7-14 days due to system capacity, and this was a feature of all CCTV installations within prisons.

34. The SPS acknowledged it had failed to take the necessary steps to secure the CCTV footage, explaining this arose as the individual responsible for securing the footage failed to understand the interaction between competing legislation, further compounded by staff absence. The SPS confirmed that steps had been taken to address this misunderstanding.

35. The SPS submitted that, notwithstanding the failure to retain the CCTV footage, the information would, in any event, have been considered exempt from disclosure in terms of section 35(1)(f) (Law enforcement) of FOISA.

36. The SPS conceded that its initial response could have been clearer. It explained that its review outcome sought to address the deficit identified by Mr S in the initial response, which should have exempted the information under section 35(1)(f) of FOISA. The SPS acknowledged that, at review stage, the CCTV footage was not held and, while it had informed Mr S that the images were no longer available due to the recordings having been overwritten, it accepted this also could have been made clearer.

37. The SPS confirmed it no longer wished to rely on section 35(1)(f) of FOISA as the information was not held.

38. During the investigation, the SPS provided the Commissioner with copies of internal email correspondence relating to the searches carried out to establish what information was held falling within the scope of Part 3 of the request. This information evidenced that the CCTV recordings were held at the time of Mr S's initial request, and that information ascertained from them was recorded in an email, which detailed the approximate number of prisoners who appeared active at the relevant times.

39. The SPS was asked to explain what happened to the CCTV footage thereafter. It submitted that the footage would have been overwritten at some point during the period 27 March to 3 April 2018, the latter date likely being the latest day before the footage would have been overwritten.

40. The SPS was asked to confirm whether it considered the information concerning the approximate number of prisoners, ascertained from the CCTV footage, to be the information Mr S was seeking in Part 3 of his request, and whether it would be willing to disclose that information to Mr S.

41. In response, the SPS submitted that it had considered whether this information was what Mr S was seeking. It had concluded that it was not, as the correspondence recorded an unspecific (estimated) figure, contained no information about the individuals' activities and the CCTV footage was no longer available to be more specific or definitive. The SPS confirmed it was content to provide Mr S with the estimated figure.

42. On 8 March 2019, the SPS wrote to Mr S, enclosing part of an email confirming that the CCTV was available (when viewed for the purposes of this request) and detailing the approximate number of prisoners who appeared to be active between the times indicated. The SPS informed Mr S that, while this was not the information he had requested, it was indicative of the information held at that time and was provided to advise and assist.

43. Following this, Mr S wrote to the Commissioner, commenting that the SPS's further response was unclear as to the nature of the information now provided and its relevance to the request. He did not consider the information was of any assistance and was unclear whether or not the SPS had taken the necessary steps to safeguard the information requested.

The Commissioner's view - Part 3 of request

44. In this case, there are a number of separate matters on which the Commissioner considers it necessary to reach a view:

· whether the information ascertained from the CCTV footage falls within the scope of Part 3 of Mr S's request;

· whether the SPS was correct to rely on section 35(1)(f) of FOISA to withhold the information requested in Part 3, and

· whether the SPS failed to take adequate steps to safeguard the information requested in Part 3.

45. The Commissioner has carefully considered the information and supporting evidence from both parties, the information disclosed to Mr S and the circumstances and timescales surrounding the retention and deletion of the CCTV footage.

  Does the information ascertained from the CCTV footage fall within scope?

46. The Commissioner has considered the reasons put forward by the SPS for concluding that the information ascertained from the CCTV footage did not fall within scope of Part 3 of Mr S's request.

47. With regard to the SPS's submissions that the figure was "unspecific" (i.e. an estimate), the Commissioner is not clear how any more could reasonably be expected to be gleaned from the footage in the circumstances. The request covers a 45-minute period, over which the number of individuals who appeared to be active would be likely to fluctuate, depending on their activities and the location of the CCTV cameras. By definition, the individuals in question would all be similarly clad. It appears to the Commissioner that a reasonable estimate, derived from observation of the system, would be what it would be reasonable to expect as the information the SPS could provide for this part of the request.

48. With regard to the SPS's view that the information was not relevant as it did not record the activities being undertaken, the Commissioner considers this argument to be somewhat spurious. Mr S did not seek details of activities being undertaken, only the number of individuals unlocked and undertaking any activities.

49. In light of the fact that the CCTV footage itself is no longer held, the Commissioner is of the view that the information ascertained from its viewing is the only information held by the SPS and falling within the scope of Mr S's request. The Commissioner considers this to be the information sought by Mr S, albeit held in a different format, rather than new information created in order to facilitate a response to an information request. The information was clearly held within the footage at the time the request was received, and was extracted therefrom in order to provide a response to the request. It is clearly what Mr S intended to receive in response, given the wording of his request and his further explanation set out above.

50. The Commissioner can only conclude that by failing to identify this information as falling within scope, the SPS breached section 1(1) of FOISA.

51. Given that, during the investigation, the SPS disclosed this information to Mr S, he does not require the SPS to take any action in regard to this failure.

 Was the information correctly withheld at review stage?

52. As explained above, the SPS withheld the information requested in Part 3 of the request under section 35(1)(f) of FOISA. During the investigation, the SPS withdrew reliance on section 35(1)(f) as it did not consider the information requested to be held. Given that the SPS provided no submissions explaining why the information was considered to have been correctly withheld at the time it dealt with Mr S's requirement for review, the Commissioner can only conclude that it was not entitled to withhold that information at that time (and therefore breached section 1(1) of FOISA in so doing).

 Did the SPS fail to retain the information requested?

53. It is clear to the Commissioner that:

· The CCTV footage, which contained the information requested, existed and was held by the SPS at the date of Mr S's request (18 March 2018).

· The CCTV footage was viewed by SPS staff, and the information ascertained therefrom was recorded in an internal email dated 3 April 2018. (This information has been deemed by the Commissioner to fall within scope, as set out above.)

· The CCTV footage was overwritten at some point shortly thereafter.

· The information held at review stage was the information extracted from the CCTV footage and recorded in the email dated 3 April 2018.

54. The Commissioner has carefully considered the circumstances that led to the CCTV footage being overwritten. It is clear that this was due to a misunderstanding of competing legislation by a member of staff, compounded by other staff absence, and that there was no deliberate or conscious attempt to actively destroy this information. The Commissioner notes that the SPS has accepted it failed to secure the CCTV footage, and welcomes the fact that steps have been taken to ensure this does not recur in future.

55. The Commissioner considers any failure to secure information requested under FOISA to be a serious matter. However, as concluded above, the Commissioner considers the information extracted from the footage to fall fully within the scope of Mr S's request. It is also clear from Mr S's request and his submissions that he was not seeking the actual footage, rather the information ascertained therefrom. As such, the information that would answer Mr S's request was held within the CCTV footage when he submitted his request, and the information extracted therefrom was held in an email when he sought a review and made his subsequent application to the Commissioner. In essence, the relevant information was held at all key stages of the process in one form or another.

56. The Commissioner would also observe, bearing in mind his comments above about an estimated figure, that it is unlikely either a reviewer or his own Office would be in a position to substitute a "better" estimate for the one arrived at on initial observation. The process of observation and estimating in circumstances such as this is not, so far as he is aware, governed by any kind of established standards.

57. Nevertheless, the Commissioner considers he must find that by failing to secure the footage that held the information requested by Mr S, in case it might be required for further examination under FOISA, the SPS breached section 1(5) of FOISA. Section 1(5), set out in full in Appendix 1, requires that requested information shall not be destroyed before it can be given to the applicant, unless the circumstances are such that it is not reasonably practicable to prevent such destruction. Given the nature of the events which led to the destruction of the footage, there is no basis for regarding the prevention of its destruction as other than reasonably practicable.

 Section 15 of FOISA - Duty to provide advice and assistance

58. Section 15(1) of FOISA requires a Scottish public authority, so far as is reasonable to expect it to do so, to provide advice and assistance to a person who proposes to make, or has made, a request for information to it. Section 15(2) states that a Scottish public authority shall be taken to have complied with this duty where (in relation to the provision of advice and assistance in a particular case) it conforms with the Scottish Ministers' Code of Practice on the discharge of functions by Scottish public authorities under FOISA and the Environmental Information (Scotland) Regulations 2004 (the Section 60 Code[1]).

59. The Section 60 Code states, at paragraph 5.1.1 in Part 2:

Authorities have a duty to provide advice and assistance at all stages of a request. It can be given either before a request is made, or to clarify what information an applicant wants after a request has been made, whilst the authority is handling the request, or after it has responded.

60. It further states, in section 9.2 in Part 2:

Duty to advise and assist when responding to a request

The obligation to provide advice and assistance continues at the point of issuing a response. For example, if directing the applicant to a website, the authority should take all reasonable steps to direct the applicant to the relevant section.

61. In his submissions to the Commissioner, Mr S was dissatisfied that the further response provided by the SPS on 8 March 2019 was unhelpful as it was unclear whether the information disclosed did, or did not, relate to the request. On the one hand, the response stated that the information provided an indication of the number of prisoners unlocked yet, at the same time, it asserted that this was not the information Mr S had requested but was "indicative" of the information held at that time.

62. Having examined the further response provided by the SPS, the Commissioner concurs that its content is confusing and somewhat contradictory. He considers the response could have been made clearer, for example, by explaining from where, or by what means, the information had been ascertained, and/or more clearly why the SPS did not consider the information to fall within the scope of the request. By failing to do so, the Commissioner finds that the SPS failed to comply with its duty under section 15 of FOISA to provide advice and assistance to Mr S.

 

 Decision

The Commissioner finds that the Scottish Prison Service (the SPS) partially complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by Mr S.

The Commissioner finds that the SPS was entitled to give notice, in terms of section 17(1) of FOISA, that it held no information falling within the scope of Parts 5 and 6 of Mr S's request, and so complied with Part 1.

However, in failing to identify and provide information falling within the scope of Part 3 of Mr S's request, the Commissioner finds that the SPS failed to comply with section 1(1) of FOISA.

Also, in failing to secure information relevant to Part 3 of Mr S's request, which might have been required for further examination under FOISA, the Commissioner also finds that the SPS failed to comply with section 1(5) of FOISA.

The Commissioner further finds that, in failing to provide adequate advice and assistance, as required by section 15 of FOISA, to aid Mr S's understanding of its further response to Part 3 of his request, the SPS failed to comply with Part 1 of FOISA.

Given that, during the investigation, the SPS disclosed to Mr S the information found to fall within the scope of Part 3 of the request, the Commissioner does not require the SPS to take any action in respect of these failures, in response to Mr S's application.

 

  Appeal

Should either Mr S or the Scottish Prison Service wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.

Margaret Keyse
Head of Enforcement

17 April 2019

 

 Appendix 1: Relevant statutory provisions

Freedom of Information (Scotland) Act 2002

1 General entitlement

(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

(4) The information to be given by the authority is that held by it at the time the request is received, except that, subject to subsection (5), any amendment or deletion which would have been made, regardless of the receipt of the request, between that time and the time it gives the information may be made before the information is given.

(5) The requested information is not, by virtue of subsection (4), to be destroyed before it can be given (unless the circumstances are such that it is not reasonably practicable to prevent such destruction from occurring).

(6) This section is subject to sections 2, 9, 12 and 14.

 2 Effect of exemptions

(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that -

(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.

 15 Duty to provide advice and assistance

(1) A Scottish public authority must, so far as it is reasonable to expect it to do so, provide advice and assistance to a person who proposes to make, or has made, a request for information to it.

(2) A Scottish public authority which, in relation to the provision of advice or assistance in any case, conforms with the code of practice issued under section 60 is, as respects that case, to be taken to comply with the duty imposed by subsection (1).

 17 Notice that information is not held

(1) Where-

(a) a Scottish public authority receives a request which would require it either-

(i) to comply with section 1(1); or

(ii) to determine any question arising by virtue of paragraph (a) or (b) of section 2(1),

if it held the information to which the request relates; but

(b) the authority does not hold that information,

it must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant notice in writing that it does not hold it.

 35 Law enforcement

(1) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice substantially-

(f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained;


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