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Round-up iconDecisions Round-up: 18 to 22 March 2019

This week's decisions include a large number of cases where an authority failed to respond, so we highlight a resource which can help authorities get this vital part of FOI right. We also feature our first decision involving criminal offences since the data protection rules were changed, and an interesting case where a requester contacted an authority about a late request but said they didn't want it to be treated as a review. What should the authority have done?

 

Learning points:

 

  • Authorities must respond on time
    Six of the nine decisions we're publishing this week concern cases where authorities failed to respond within the 20 working day time limit. Responding on time is a statutory duty, and authorities must ensure this duty is met. Failing to do so denies a person of their rights, damages the relationship between the authorities and requesters and creates more work for an authority as it responds to FOI reviews and appeals.

    Any authority experiencing persistent problems in this area should make use of our 'Responding on Time' Self-Assessment Toolkit.

 

  • Personal data on criminal offences under the new law
    This week, we issued our first decision on personal data about criminal offences and convictions since the new data protection rules came into force (Decision 046/2019). The decision highlights the different tests to be considered when dealing with criminal offence data. We'll update our personal data guidance over the next couple of weeks to reflect this decision.

 

  • Information can't be withheld unless all tests are met
    The EIRs allow public authorities to withhold environmental information if it would harm the interests of the person who provided the information (regulation 10(5)(f)). However, as with all cases where information is withheld, there are tests that must be met first, and authorities must ensure these are fully considered.

    In Decision 042/2019, the authority hadn't adequately set out the harm that disclosure would cause to the interests of third party, focussing instead on wider issues. In addition, for the exception to apply, the third party must not have consented to disclosure. The Commissioner's view is that this means they must have been asked for consent and denied it. In this case, the authority did not evidence this.

    Further guidance on the tests that must be met before withholding information under the EIRs and the FOI Act is available here.

 

  • If a requester says they don't want a review, an authority shouldn't carry one out...
    When the 20 working days for responding to a request have passed and an authority hasn't responded, any expression of dissatisfaction from the requester after that will normally count as a request for review. However, the requester may - as in Decision 044/2019 - simply send a reminder at first, stating that it isn't a request for review (although they may still send one of these later). If that's what the requester does, the authority shouldn't carry out a review until actually asked for one.

 

  • Authorities should identify all information as quickly as possible
    When it receives an information request, an authority should identify all relevant information it holds as quickly as possible. We see too many cases where this isn't done until the case is appealed to us (e.g. as in Decision 045/2019).

Decisions issued:

 

  • Decision 42/2019 Mr M and Loch Lomond and The Trossachs National Park Authority (LLTNPA)
    LLTNPA was asked for camping permit data and ranger patrol records following the introduction of new camping byelaws. LLTNPA provided some information and withheld some, claiming several exceptions from disclosure. Following investigation, we decided that only some information was correctly excepted from disclosure. We found that other data should have been disclosed.

 

  • Decision 45/2019 Mr J and Dumfries and Galloway Council
    The Council was asked about an "action plan" submitted for approval in September 2016 and for information regarding its Request for Assistance (RFA) form and guidance. The Council provided some information, but claimed it didn't hold an "action plan".

    The Commissioner decided that the Council did hold an "action plan" and that it had failed to disclose the correct RFA documentation and guidance. The Council identified and disclosed this information during the investigation.

 

  • Decision 46/2019 Mr G and the Chief Constable of the Police Service of Scotland (Police Scotland)
    Police Scotland were asked for the names and dates of birth of offenders who had breached home detention curfews and were "unlawfully at large". Police Scotland withheld the information under the exemption for third party personal data. We found that Police Scotland were entitled to withhold this information.

 

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