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Round-up iconDecisions Round-up: 11 to 15 November 2019

This week's Round-up reminds authorities that it is their duty to inform requesters of their appeal rights when handling a case. There is also a reminder to authorities that advice and assistance can also include seeking clarification about a request. We look at a case where we deemed the FOI right was used to seek advice or guidance on a policy rather than to seek recorded information held by the authority and we remind requesters that FOI can't require an authority to create new information.

Learning points:

  • Requesters should be fully informed of their FOI rights
    FOI law requires public authorities to inform requesters of their rights to appeal to the Commissioner and the Court of Session. If the requester is to benefit from these rights, it's important that authorities do this. This didn't happen in Decision 163/2019.
  • Advice and assistance includes seeking clarification
    Authorities are required to provide requesters (and potential requesters) with advice and assistance in relation to their requests. This can include seeking clarification of the request, as we saw in Decision 164/2019.
  • Requesters - FOI information rights can't require an authority to create new information
    The basic FOI right is to seek recorded information held by a Scottish public authority. It doesn't require an authority to create new information that's not been recorded. FOI can't, therefore, be used to ask an authority to provide a (previously unrecorded) view or opinion tailored to a very particular scenario presented by the requester. We looked that this in Decision 164/2019.

Decisions issued:

  • Decision 163/2019 Dumfries and Galloway Council
    The requester asked the Council for information about social work minutes. The Council said it didn't hold the information. We investigated and agreed. However, we also found the requester hadn't been given adequate notice of his FOI rights.
  • Decision 164/2019 West Lothian Council
    The Council was asked for information about social work policies. It stated that no information was held, but provided the requester with some explanations.

    The Commissioner investigated and agreed that the Council didn't hold most of the information requested. He also found that it failed to comply in full with the duty to provide advice and assistance in relation to one part of the request.
  • Decision 165/2019 Fife Health Board (NHS Fife)
    NHS Fife was asked for the names of the members of a recruitment panel. It refused to provide the information on the basis that it was personal data which, in the circumstances of the case, was exempt from disclosure. We investigated and found that the information was properly withheld.

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