Public Interest Test used in Freedom of Information requests: FOI review

Information requested

 

For the last 500 responses (see note 1) to Freedom of Information requests issued by the Scottish Government please:

(A) State the total number of times the Public Interest Test was used.

(B) Summarise in a table the total number of times the Public Interest Test was used by FOISA qualified exemption category (an exemption category being a FOISA section reference – such as section 30(c): effective conduct of public affairs).

(C) For each FOISA qualified exemption category in (B), please provide a summary of the
outcome of the Public Interest Test, specifically:

• The total number of Public interest Tests resulting in information being withheld.
• The total number of Public Interest Tests resulting in information being disclosed.

For (A) (B) and (C), please provide separate statistics for initial FOI responses and those relating to responses to requests for internal review.

Note 1: The term ‘responses’ is used in this FOI request for the purposes of determining a population for analysis. The information sought in (A) (B) and (C) should be based on wherever the information is held such as case files, internal memorandums and response letters.

 

Response

 

I have now completed my review of your request. I have looked at your request afresh to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted.

I have concluded that we did not hold the information you requested, and I therefore uphold the decision to issue a formal notice, in terms of s.17(1) of FOISA, to that effect.

I do consider that, being mindful of our duty to provide advice and assistance to requesters, in terms of s.15 of FOISA, we could have done more to explain the limitations of the information that we do collate. In my view, we should have offered to advise you on narrowing or refining your request.

I have set out more detailed reasoning for my decision below.

 

Whether we held the information you requested

Having interrogated our FOI case management system, I cannot compile the information you have requested. This is because:

• the system does not record information about the use of the public interest test;
• the system only records information about the application of exemptions involving the public interest test based on the outcome of the case – that is, when the outcome has been to withhold information, in whole or in part;
• the system does not record where a qualified exemption has been considered during the case handler’s deliberations and the outcome of weighing up the public interest has been to disclose the information.

In order to assist you as far as possible, I have considered whether we could provide part of the information you have requested at the first bullet point of Part C of your request (i.e. ‘the total number of Public interest Tests resulting in information being withheld’).

As I have stated above, the FOI case management system does record the outcomes of cases where information has been withheld in whole or in part in relation to qualified exemptions. However, I do not consider that we could infer from the outcomes of cases that the case handler has used the public interest test.

I note that you wished us to search in ‘case files, internal memorandums and response letters’. I have therefore considered whether the information you have requested could be compiled from case files, without the application of skill or complex judgment.

I have concluded that it would not be possible to compile such information. I consider that to attempt to do so would involve creating new information and not compiling or extracting information that we already hold. Public authorities are not obliged to create new information in response to requests for information.

In addition you may be aware that the Scottish Information Commissioner’s Intervention Report published in June 2018 found inadequate recording of the reasons for decisions in case files, particularly in relation to the application of exemptions. This will be addressed through the implementation of the Action Plan agreed with the Commissioner. Meantime it is the experience of the staff in the FOI Unit that information about the application of the public interest test is often incomplete in case files.

For all these reasons, I have concluded that we do not hold the information you have requested, and I will uphold the decision to issue the s.17(1) notice.

Providing you with advice and assistance

In terms of s.15(1) of FOISA, we have a duty to provide requesters with advice and assistance. I consider that you should have been offered advice and assistance when you received the response to your request. For example, we could have offered to provide you with the outcome of the cases where qualified exemptions were applied, within the sample of 500 responses up to the date of your request. This would have been provided outwith FOISA, as it was not the information that you had requested. However I consider that it could have more clearly indicated to you the information that can be readily collated from our case management system, and that this may have been helpful to you in refining an information request about the use of the public interest test.

I note that you were provided with such information in response to case reference FOI/18/03284 on 12 November 2018, and on review, it was clarified that this information had been provided outwith FOISA. If it would be of any assistance to provide you with a similar extract on this occasion, please contact us so that it can be dealt with as a formal request under FOISA.

 

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.