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Round-up iconDecisions Round-up: 9 December 2019 to 17 January 2020

FOI law places three main duties on public authorities, one of which is the duty to advise and assist. This bumper Round-up to start the year looks at some of the obligations and limits of this important duty.

We also include a valuable learning point about the interaction between FOI and data protection law. Most of the time, decisions on whether to disclose personal data involve balancing the interests of the requester against those who are the subject of the information. In this case - involving individual volunteers' expenses - the Commissioner found in favour of the latter.

Finally, last month saw a decision issued by the Court of Session, following an appeal against the outcome of one of our investigations - see below for details.

Learning points:

 

  • The duty to provide advice and assistance has limits...
    FOI law requires authorities to advise and assist requesters so far as it is reasonable. If an authority has already offered appropriate advice, which has not been taken up by the requester (as in Decision 177/2019), it may not be reasonable to expect it to go further.
  • Any advice provided must be realistic
    On the other hand, any advice given must be realistic. Where cost is the issue, for example, there's no point suggesting the requester narrows the scope of their request in a particular way, if there's no prospect of bringing the request within the cost limit (as we found in Decision 176/2019)

 

  • The status of particular data subjects may have a bearing on their expectations
    In considering whether to disclose personal data in response to an FOI request, the expectations of the data subject can be an important factor. The status of the individuals concerned may have a bearing on this, as in Decision 180/2019, where volunteers were considered less likely to expect their expenses to be disclosed than paid employees.

 

  • There's no requirement to obtain information that isn't already held
    The right to information only applies to what a public authority actually holds at the time it receives a request. Authorities aren't required to look elsewhere, such as for information held by other organisations that aren't Scottish public authorities (as we noted in Decision 181/2019).

 

  • One for requesters - don't assume every authority will be able to retrieve information in the same way
    Not all public authorities- even if they're all the same type, such as a council or NHS board - hold information in the same way or use the same systems for retrieving it. Therefore, one authority may be able to find information quickly and easily with an electronic search, while another similar authority may only be able to retrieve the same information after a time-consuming manual process. This is something else we commented on in Decision 176/2019.

Decisions issued:

 

  • Decision 176/2019: City of Edinburgh Council
    The council was asked for details of its payments to Health and Social Care suppliers between two dates. It refused the request, estimating that the cost of responding far exceeded the £600 limit (although it did disclose some data during the investigation). The Commissioner agreed with this - and so the council wasn't required to comply with the request - but also found that it had failed to give suitable advice and assistance, and hadn't complied with the FOI timescales.

 

  • Decision 177/2019: Greater Glasgow and Clyde Health Board (NHS Greater Glasgow and Clyde)
    NHS Greater Glasgow and Clyde was asked for information about Chief Scientist Office funding for NHS Research Scotland over a specified time period. The request was refused on cost grounds, but the appeal related to whether the authority had complied with its duty to advise and assist the requester in rewording the request. We looked at the steps taken by NHS Greater Glasgow and Clyde and were satisfied that the duty had been met in this case.

 

  • Decision 178/2019: Chief Constable of the Police Service of Scotland (Police Scotland)
    The requester asked Police Scotland for instructions received from the Lord Advocate, his office, or the Crown Office and Procurator Fiscal Service regarding specific allegations against NHS Ayrshire and Arran. Police Scotland responded that no information was held, which the Commissioner accepted after an investigation.

 

  • Decision 179/2019: Dumfries and Galloway Health Board (NHS Dumfries and Galloway)
    NHS Dumfries and Galloway was asked how many support staff had their regular unsocial / night hour payments cut or reduced for a period of annual leave during August, September and October 2018. The authority stated that it didn't hold the information in a reportable format and responding would require the creation of new data. We accepted this, following an investigation.

  • Decision 180/2019: Scottish Courts and Tribunals Service (SCTS)
    The requester asked the SCTS for expenses and other allowances claimed by Justices of the Peace (JPs). The SCTS provided annual totals for each financial year, but withheld the amount claimed by each individual JP. The Commissioner investigated and agreed that these amounts were exempt as they represented personal data, disclosure of which would breach the data protection principles.

 

  • Decision 181/2019: North Ayrshire Council
    The Council was asked about the amount of community benefit money that was appropriated under a Local Development Plan Policy. Following an investigation, we were satisfied that the Council didn't hold the information.

 

  • Decision 182/2019: University of Stirling
    The University was asked about its partnership with the London Academy of Diplomacy and a named Professor. The University withheld some of the requested information and stated that it didn't hold the remainder. The Commissioner investigated and found that some information had been wrongly withheld, so ordered the University to disclose that information.

 

  • Decision 001/2020: Falkirk Council
    The requester asked the council for information about its Youth Engagement Review. We found that the council failed to respond to the original request and the request for review within the FOI timescales.

 

Court of Session decision:

Dr Ian Graham v Scottish Information Commissioner

In Decision 206/2018, the Commissioner found that information relating to the procurement of certain services, purchased by Aberdeenshire Council on behalf of the Returning Officer, was not held by the Council for the purposes of the FOI Act. He considered the information to be held on behalf of the Returning Officer, who is not subject to FOI legislation.

Dr Graham appealed this decision to the Court of Session, which issued its Opinion on 3 December 2019. The Court found that the Council had distinct responsibilities of its own in relation to the contracts covered by the request, and needed the information requested by Dr Graham for these purposes. It therefore held the information in its own right, even if it might - at the same time - be held on behalf of the Returning Officer.

We will be reviewing our guidance on when information can be regarded as held by a Scottish public authority.

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