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Reviews - Freedom of Information (FOI)
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TOPIC: Reviews - Freedom of Information (FOI)

Re: Reviews - Freedom of Information (FOI) 5 years, 1 month ago #37

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23/10/2018

'I therefore uphold the Trust’s initial determination of the matter but would apologise for the lack of a formal indication of the relevant legal basis on which the information was retained and the omission of relevant text regarding your rights to review.

Again, I am of the view that this information satisfied the terms of your initial request (as subsequently clarified by you) but failed to formally intimate that no information was held in terms of section 17 of the 2002 Act. I would now take this opportunity to confirm that this is in fact the case and again apologise that no reference to your review rights was made.'

Gerry Mahon
Chief Officer - Legal & Procurement
Chief Executive Department

Re: Reviews - Freedom of Information (FOI) 5 years, 1 month ago #38

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30/10/2018 - Extract from Review

'I acknowledge that this particular query was not answered within statutory timescales and apologise for this fact.

You have however raised further queries regarding what appears to you to be an inconsistency in the responses offered to questions 5 and 6.

You separately asked if SOLACE or the consultant were paid for the work to which negative answers were provided to both questions.

I accept that you may find these answers confusing but note that they are technically accurate responses to the initial questions asked.

Neither SOLACE nor the consultant were paid.

Payment was in fact made to SOLACE in Business, part of the SOLACE group but a different arm of the organisation which operates on a commercial basis.

I do however feel that the response could have provided an explanation of this fact in terms of the obligation to provide assistance under the Freedom of Information (Scotland) Act 2002.

I also note that you did subsequently explicitly ask who was paid and whilst the Department felt that their initial response had already addressed this issue, I accept that the way the information was conveyed was not clear and as such this information has not, until now, been supplied to you. '

Gerry Mahon
Chief Officer - Legal & Procurement
Chief Executive Department

Re: Reviews - Freedom of Information (FOI) 5 years, 1 month ago #39

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30/10/2018 - Extract from Review

'In the first instance I would accept that no information has been supplied to you in response to your request, nor has a nil response been provided to you in terms of section 17 of the Freedom of Information (Scotland) Act 2002.

As such the council has failed in its responsibilities under the legislation and for this I apologise. '

Gerry Mahon
Chief Officer - Legal & Procurement
Chief Executive Department

Re: Reviews - Freedom of Information (FOI) 5 years, 1 month ago #40

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20/11/2018 - Extract from Review

'My own view however is that this request should have been addressed under the Environmental Information (Scotland) Regulations 2004 given the nature of the report.

I am also of the opinion that the Council did not, within appropriate timescales, provide you with the formal response to your request outlining the basis for such non-disclosure, specifying the relevant statutory provisions justifying this position and highlighting your entitlement to seek review.

I note that this latter omission did not in fact prejudice you given your submission of a review request on 6 November but would apologise that this was not explicitly stated to you.

These issues will be brought to the department’s attention to improve future handling of requests.

I also note your repeated question as to when the request was received and how many working days had elapsed since receipt.

Whilst these were obviously matters within your own knowledge I accept that they should have received a formal response at the time of request.

I would ultimately advise that the report was publicly issued 32 working days after receipt of your request, within the 60 working day period effectively provided for under the 12 week exemption. '

Gerry Mahon
Chief Officer – Legal and Procurement

Re: Reviews - Freedom of Information (FOI) 5 years, 1 month ago #41

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11/12/2018 - Extract from Review

'In the first instance I note that since the date of the review request the Trust has in fact supplied you with a formal response despite having initially advised that they considered the request as vexatious.

It is accordingly this latter response which I am reviewing insofar as it reflects their most recently stated position.

That being the case I would firstly comment that it does not specify the particular statutory provisions on which non-release is based albeit that the actual basis for non-disclosure is clearly specified. '

Gerry Mahon
Chief Officer - Legal & Procurement
Chief Executive Department

Re: Reviews - Freedom of Information (FOI) 5 years, 1 month ago #42

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04/01/2018 - Extract from Review

'I have a number of preliminary observations to make.

In the 1st instance I would note that the Trust have failed to comply with the appropriate timescale for response, their reply of 3rd December being well out with the 20 working day period set out in legislation.

I note from consideration of the file that an explanation has already been offered as to the reasons surrounding this delay and an apology made.

I would merely take this opportunity to reiterate that apology on behalf of the organisation.

Secondly, and taking aside the merits or otherwise of assessing the information as being commercially sensitive, I am of the view that the reference to the exemption under section 33 (2) (b) of the Freedom of Information (Scotland) Act 2002 (“the Act”) is misplaced insofar as it relates to the financial interests of an administration of the United Kingdom.

I also consider that, (assuming that the reference was intended to reflect section 33 (1) (b) i.e. the commercial interests of the Trust) it in any event fails to properly address the 2nd part of the test which requires consideration of the public interest.

It is clear from the Trust response that there is no reference to the public interest and no explicit examination of the competing factors which would fall to be assessed in this process.

On these points alone I am therefore satisfied that the Trust have failed to fully comply with their obligations under the Act.

Turning to the items numbered 1 and 5 above, whilst I am satisfied that there are certain commercial benefits in maintaining some confidentiality there do appear to be certain extracts from the reports which are not to my mind so sensitive that they could not be released.

There is a general argument that disclosure of annual board plans, with schedules of work, details of plans to be worked-up or considered, budget details including budget pressures, bids for additional resources and items still subject to negotiation with third parties including the Council will seriously damage the Trust’s ability to deliver services and budgets on behalf of the Council and its tax payers given the competitive nature of the market place in which it operates in the local area and the use of such information by competitors to maintain current advantages in customer numbers.

I do however feel that certain portions of the information can be released without causing prejudice and as such I would provide you with these extracts (as per the attached).'

Gerry Mahon
Chief Officer - Legal & Procurement
Chief Executive Department
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