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Round-up iconDecisions Round-up: 5 - 9 November 2018

FOI allows authorities to refuse to reveal whether they even hold information in certain cases.  Sometimes, for example, simply revealing whether information is held might disclose someone’s sensitive personal information.  We had two cases this week where we found authorities had used this provision correctly.  Read on for more advice…FOI allows authorities to refuse to reveal whether they even hold information in certain cases. Sometimes, for example, simply revealing whether information is held might disclose someone's sensitive personal information. We had two cases this week where we found authorities had used this provision correctly. Read on for more advice…

Learning points:

  • Neither confirming or denying that information is held
    In two cases this week, the authority was correct to neither confirm nor deny ("NCND") that it held information (Decisions 169/2018 and 171/2018). In both cases, simply confirming whether information was held would have revealed sensitive personal data about identifiable individuals, even if the information itself was withheld.

    "NCND" is allowed only where the information, if held, could be withheld under one of the FOI exemptions listed in section 18 of the FOI Act. Some of these exemptions are subject to the public interest test. Section 18 then requires another public interest test to be carried out - it can only apply where it would be against the public interest to reveal whether the information exists or is held.
  • How to avoid appeals
    Five cases were withdrawn without a decision this month after the requester received some or all of the information they'd asked for, following our intervention. In most cases, this information could have been provided straight away, when the request was received.

    In two cases, the requester withdrew after receiving the detailed explanation which the authority had provided to us in its submissions and agreed could be shared. Sometimes requesters seem to be expected to take a lot on trust. If more explanation is available to back up a "not held" or "excessive costs" response, sharing this can show a requester that there is a genuine reason for the refusal (and reduce the likelihood of an appeal).
     

Decisions issued:

  • Decision 169/2018 Mr Y and Stirling Council
    Mr Y asked for details of misconduct proceedings for two employees. The Council refused to confirm or deny whether it held any relevant information. We accepted that the Council was entitled to do this.
  • Decision 170/2018 Mr X and NHS Orkney
    Mr X made a multi-part request for a wide range of information about NHS Orkney's record-keeping policies, procedures and practices. NHS Orkney refused to comply as the cost would exceed the £600 limit. After investigation, we accepted this.
  • Decision 171/2018 Mr X and South Lanarkshire Council
    The Council was asked why it took someone to court and what the outcome of the action was. It was also asked the number of residents given on a tenancy application. The Council refused to confirm or deny whether it held any information about the court action. It confirmed it held information about the number of residents, but refused to disclose it. We found that the Council had responded correctly.
  • Decision 172/2018 Mr H and Fife Council
    Mr H asked why the Council was unable to establish who owned a particular piece of land. The Council withheld information, claiming legal professional privilege. After investigation, we accepted that the withheld information was legally privileged and that the Council was entitled to withhold it under the EIRs' exception for internal communications.
  • Decision 173/2018 Mr D and Highland Council
    Mr D asked about unpaid parking fines. The Council provided some information and explained that extracting information to answer even part of the request would cost more than £600. We accepted that the Council did not have to comply, as the cost would exceed the upper limit.
  • Decision 174/2018 Mr F and Scottish Enterprise
    Scottish Enterprise was asked about funding for Pladis (a food company). It withheld information relating to a meeting which had been provided in confidence. After investigation, we accepted that Scottish Enterprise was entitled to withhold the information.
  • Decision 175/2018 Mr G and the Scottish Prison Service (SPS)
    Mr G asked about restrictions on access to prisoner telephones. The SPS disclosed information, but Mr G believed that it held more. After investigation, we were satisfied that the SPS had carried out appropriate searches and had disclosed all relevant information.

Resolved cases

The FOI Act allows us to try to resolve cases informally. This often involves us giving advice to requesters to let them decide whether to continue with the appeal or, in the case of public authorities, to decide whether to disclose information they had previously withheld.

We closed nine cases without a decision notice in October. In each case, the requester withdrew their appeal.

  • In two cases, some additional explanation satisfied the requester: in one, the authority's explanation of the costs involved in answering the request; and in the other, confirmation that the authority had not taken external legal advice.
  • Disclosure of some related or withheld information satisfied five requesters.
  • A "failure to respond" application was withdrawn after the authority issued a response.
  • In one case, the authority accepted our advice that its response was incorrect and sent a revised response.

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