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Round-up iconDecisions Round-up: 03 to 18 January 2019

A packed round-up this week, with lots of learning points for requesters and authorities alike. So whether you're looking for learning on records-keeping or redaction, vexatious requests or the harm test, or responding ASAP or with NCND, you'll find plenty of useful advice below...

Learning points:

 

  • Information held on behalf of someone else - or not
    Under the FOI Act, information will not be held by a public authority if it's in the authority's possession but is actually held on behalf of someone else. However, it's important for the authority to check that it only holds the information in that capacity - if it also holds the information for its own purposes, it will hold it under FOI. In Decision 206/2018, we looked at information an authority held on behalf of the Returning Officer. During the investigation, the authority acknowledged that it also held some of the information for its own accounting purposes (and therefore held it in its own right and should have disclosed it to the requester).

 

  • The importance of keeping records of FOI request-handling
    If a public authority is to satisfy the Commissioner that its searches for information have been adequate, it needs to have accurate records of those searches. If these haven't been kept, it's likely that searches will need to be repeated during our investigation (adding time to the process). And it's not just records of searches that should be kept. Authorities should also keep records of the outcome of their decisions, including details of information withheld of disclosed and the reasons for the application of any exemptions. We looked at these issues in Decision 208/2018.

 

  • Redacting personal data from email addresses
    Authorities need to take care when removing personal information from email addresses, to ensure that only information which can identify a particular individual is removed. The rest of the address may still provide valuable context, particularly in relation to the source of the email. We commented on this, too, in Decision 208/2018.

 

  • Advice and assistance should help the requester find available information
    When an FOI request is refused because the information is available elsewhere, one key function of the FOI duty to provide advice and assistance is to allow the requester to understand what information is available, and how and where it can be accessed. We looked at an authority's failure to achieve this effectively in Decision 211/2018.

 

  • The "harm test": hypothetical claims of harm are not enough
    Some FOI exemptions allow information to be withheld if disclosure would cause "substantial prejudice". It's important to remember, however, that this harm must be at least likely for the exemption to apply. As we found in Decision 212/2018, a general, unsubstantiated apprehension that the harm in question "may" come about will not be enough.

 

  • NCND and the public interest
    In some circumstances, the FOI Act allows authorities to refuse to reveal whether information exists. One vital element of these "Neither Confirm Nor Deny" (NCND) provisions is that the public authority must be able to establish that it would be contrary to the public interest to reveal whether it holds the requested information, or whether the information exists. In Decision 213/2018, we found this test couldn't be met - disclosing whether the authority held the information (or whether it existed) would do no more than confirm whether there was correspondence between two parties about a third party. Only in the most general sense would that say what the correspondence was about, and we couldn't identify a public interest in refusing to reveal whether there was any correspondence.

 

  • Responding "as soon as possible"
    Authorities must respond to information requests within 20 working days, but are also required to respond "promptly" (under FOI) and "as soon as possible" (under the EIRs). This also applies to requests for review. In Decision 215/2018 the authority failed to respond to the initial request, so the requester asked for a review. The requester then appealed to us before the end of the 20 working day review period, because they believed the authority had not responded "as soon as possible". We found that the time taken was appropriate in this case, having taken into account the fact that the authority was both responding to the request for the first time and looking at why the initial failure had occurred. However, we asked the authority to review measures it had put in place to prevent these failures, and report to us on the outcome.

 

  • Vexatious requests
    Another instance where it's important to take account of the circumstances of each individual case is in applying the FOI Act's "vexatious" provision. Persistent pursuit of a grievance or an extended campaign may be vexatious, but it may still (if the concerns are legitimate) be an appropriate activity in a democratic society. See Decision 001/2019.

 

  • Giving notice that information is not held
    The FOI Act and the EIRs deal with "information not held" refusals slightly differently, but under both the public authority needs to state explicitly to the requester that it doesn't hold the information in question. We looked at this in Decision 004/2019.

 

Decisions issued:

 

  • Decision 205/2018 Mr E and the Scottish Environment Protection Agency (SEPA)
    Mr E asked about a flood risk assessment for the Whitesands area of Dumfries. SEPA disclosed information, but Mr E believed not all relevant information had been provided. After investigation, we accepted that SEPA had provided all relevant information.

 

  • Decision 206/2018 Mr M and Aberdeenshire Council
    The Council was asked for information on the provision of local election services, procured under a local framework agreement. It stated that the information was held on behalf of the Returning Officer and not by the Council.

    During our investigation, the Council agreed that it held some information in its own right, which it disclosed, but maintained that some was held on behalf of the Returning Officer. We agreed, and didn't require the Council to take any further action.

 

  • Decision 207/2018 Mr Q and Scottish Borders Council
    Mr Q asked for the register of allotment holders in Hawick. The Council provided some information, but withheld personal data. After investigation, we found that the Council was correct to withhold this information.

 

  • Decision 208/2018 Mr J and Glasgow City Council
    The Council was asked about a planning enforcement complaint and a non-retrospective planning application. The Council provided some information and withheld information considered to be personal data. We identified a number of deficiencies in the Council's handling of the request, but, by the end of our investigation, were satisfied that the Council had provided all relevant information.

 

  • Decision 209/2018 D and University of Aberdeen
    D asked the University for information about any disciplinary procedures taken against a named employee in relation to a specified incident. We found that the University failed to respond to D's request for review.

 

  • Decision 210/2018 Dr Derek Manson-Smith and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked for the responses they had submitted on specified Restricted Parking Zone consultations in Glasgow. Police Scotland failed to respond to the initial request but, in their review outcome, advised that they did not hold the information requested. Following an investigation, we accepted this.

 

  • Decision 211/2018 Company A and Angus Council
    The Council was asked for information on business rate properties in its area. The Council initially withheld all of the information under various exemptions. At review stage, the Council changed its position and disclosed some information, withholding the remainder as it considered this to be otherwise available.

    The Commissioner agreed that the remaining information was otherwise available, but found that it had failed to provide adequate advice and assistance on accessing the information.

 

  • Decision 212/2018 Mr T and Keeper of the Registers of Scotland (RoS)
    RoS was asked about changes to their seed point dataset licence. RoS disclosed some information, but withheld other information.

    The Commissioner found that the majority of the withheld information was legal advice which was exempt from disclosure. However, he did not accept that information in one email was commercially sensitive and ordered its disclosure.

 

  • Decision 213/2018 Mr R and Office of the Scottish Charity Regulator (OSCR)
    OSCR was asked about the Social Bite Fund, a registered charity. OSCR disclosed some information, and withheld other information under various exemptions. OSCR also refused to either confirm or deny that it held some information. We found that OSCR had correctly withheld some, but not all, of the information. We also found that OSCR was not entitled to refuse to confirm or deny whether other information was held.

 

  • Decision 214/2018 Samantha Kerr and West Lothian Council
    The Council was asked for information about a specified incident. We found that the Council failed to respond to the requests and subsequent request for review within the FOI timescales.

 

  • Decision 215/2018 Mr K and the Scottish Ministers
    The Ministers were asked about sea lice infestation of wild salmon and the inspection of specific farms. We found that the Ministers complied with the Environmental Information Regulations in dealing with the request.

 

  • Decision 001/2019 Mr M and City of Edinburgh Council
    The Council refused to respond to a request on the basis that it was vexatious. The Commissioner wasn't satisfied that the Council had demonstrated the request was vexatious and required another response.

 

  • Decision 002/2019 Applicant and Officer of the Scottish Charity Regulator (OSCR)
    OSCR was asked for its anti-sexual abuse policy and associated complaints procedure. OSCR responded, advising that it did not hold this information but gave advice and assistance on generic HR policies which would be considered applicable in the circumstances. Following an investigation, we accepted this.

 

  • Decision 003/2019 Mr N and Children's Hearings Scotland (CHS)
    CHS was asked for the expense claims of three officers, identified by role. CHS stated that that it did not have to comply with the request as the cost of doing so would be more than £600. We found that CHS wasn't entitled to refuse the request on grounds of excessive cost.

 

  • Decision 004/2019 Applicant and Scottish Ambulance Service Board (SASB)
    SASB was asked for a copy of its anti-sexual abuse policy and associated complaints procedure. SASB responded that sexual abuse would be a criminal offence and would be dealt with by the Police. At review stage, SASB repeated this statement and provided a copy of its complaints handling procedure. After investigation, the Commissioner accepted that SASB did not hold the information requested, although it had failed to give the requester appropriate notice of this.

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