Managing complex and challenging requestsMargaret Keyse

Paul Mutch

21 May 2014

Responding to requests

•Take time to read the request carefully and prepare a plan of action•Check it’s a valid request: s8 of FOISA; r5 of the EIRs•Is it a subject access request: s7 of the DPA?•Is it a request for recorded information?•Is it clear what the request is for?

When is a request not arequest?

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Clarification

THE PROBLEMAuthority unclear what information is being asked forEXAMPLEMr Q and Police Scotland (296/2013): Police misinterpreted request, leading to information being withheld when what the requester wanted was already publishedSOLUTIONContact requester when request received if request unclear or ambiguous

Interpreting the request

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• Get in touch straight away!• What information might your

authority hold on the subject?• Advice about wording the request

Clarifying requests

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Fees

•Locating, retrieving, redacting and providing information.•Max £15 hourly rate•Requirement to issue a fees notice•First £100 free•Up to 10% of cost between £100 and £600 (max. charge £50)•Excessive cost of compliance £600

Fees and excessive costsFOISA sections 9, 12 &13

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• May charge a “reasonable amount”• No upper fees limit• May charge for locating, retrieving, redacting and providing

information• No charge for public registers or lists• No charge for inspection

Fees and costsEIRs: regulation 8

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• Fees notices – more cons than pros?

• Excessive costs (FOISA only)• Advice and assistance

Fees for challenging requests

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Vexatious requestsManifestly unreasonable (EIRs)

1. Significant burden

2. Lacks serious purpose or value

3. Designed to cause disruption or annoyance

4. Has the effect of harassing the authority

5. Manifestly unreasonable or disproportionate

Vexatious requestsSection 14(1) FOISA

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• Already responded to identical or substantially similar request

• Same requester• Reasonable period of time

Repeated requestsSection 14(2) FOISA

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Exemptions

• Some exemptions don’t apply to information past a certain age

• FOISA amendments 1 April 2014

• Even if the exemption applies, the public interest may require disclosure

• Exemptions aren’t mandatory

How long do exemptions last?

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Applying the harm test

NO HARM TEST

Section 29: if it relates to the formulation or development of Scottish Administration policy.

HARM TEST

Section 30: if its disclosure would, or would be likely to, prejudice substantially the effective conduct of public affairs

Identifying the harm test

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• There must be a significant probability that harm will occur.

• It must be the disclosure of the information which causes the harm.

• The link mustn’t be hypothetical.

“Likely”

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Prejudice must be:

•real•actual•significant

“Substantial”

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Identifying exemption specific tests

Information is exempt … if its disclosure … would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority).

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Example: section 33(1)(b)

FOISA :•Was the information obtained from another person?•Would disclosure constitute an actionable breach of confidence?

LAW OF CONFIDENCE:•Necessary quality of confidence?•Received in circumstances which imposed an obligation of confidence ?•Would unauthorised disclosure cause detriment?•Public interest defence: does this require disclosure?

Example: section 36(2)

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Public interest test

1. Why would it be in the public interest to disclose the information?

2. Why would it be in the public interest to withhold the information?

3. Weigh the two competing sets of arguments.

4. Disclose the information unless the public interest in withholding it outweighs the public interest in disclosing it.

Applying the public interest test

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• Does the age of the information stop you applying the exemption?

• Is there a harm test? Can you evidence that disclosure would or would be likely to cause the harm?

• Have you satisfied all of the tests in the exemption?

• If the exemption is subject to the public interest test, weigh the pros and cons of disclosure

Checklist

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• Discussions with the requester

• Searches carried out: what, where, when, who – and what were the results?

• Cost calculations• What was disclosed or

withheld – and why?

Record keeping

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Customer service

1. Don’t take it personally2. Don’t take it personally3. Focus on the request4. Communicate5. What can I do to help?6. www.itspublicknowledge.inf

o/tipsforrequesters7. Stick to the process

Customer service

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Scottish Information CommissionerKinburn CastleDoubledykes RoadSt AndrewsKY16 9DS

T: 01334 464610E: enquiries@itspublicknowledge.infoW: www.itspublicknowledge.info

Further informationContact us