Managing complex and challenging requests Margaret 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 a request? 3

Clarification

THE PROBLEM Authority unclear what information is being asked for EXAMPLE Mr Q and Police Scotland (296/2013): Police misinterpreted request, leading to information being withheld when what the requester wanted was already published SOLUTION Contact requester when request received if request unclear or ambiguous Interpreting the request 5

Get in touch straight away! What information might your authority hold on the subject? Advice about wording the request Clarifying requests 6

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 costs FOISA sections 9, 12 &13 8

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 costs EIRs: regulation 8 9

Fees notices – more cons than pros? Excessive costs (FOISA only) Advice and assistance Fees for challenging requests 10

Vexatious requests Manifestly 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 requests Section 14(1) FOISA 12

Already responded to identical or substantially similar request Same requester Reasonable period of time Repeated requests Section 14(2) FOISA 13

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? 15

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 17

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” 18

Prejudice must be: real actual significant “Substantial” 19

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). 21 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) 22

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 24

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 25

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 26

Customer service

1.Don’t take it personally 2.Don’t take it personally 3.Focus on the request 4.Communicate 5.What can I do to help? 6. o/tipsforrequesterswww.itspublicknowledge.inf o/tipsforrequesters 7.Stick to the process Customer service 28

Scottish Information Commissioner Kinburn Castle Doubledykes Road St Andrews KY16 9DS T: E: W: Further information Contact us