Decision 229/2007 Mr Arunabha Das Gupta and the Scottish Court Service
Four requests for information regarding individuals and practices at the Scottish Court Service
Applicant: Mr Arunabha Das Gupta
Authority: Scottish Court Service
Case No: 200601789
Decision Date: 17 December 2007
Kevin Dunion
Scottish Information Commissioner
Four requests for information regarding individuals and practices at the Scottish Court Service ? Commissioner required disclosure of the dates of appointment of two officials, but accepted that the remaining information withheld was exempt under section 38(1)(b) and that other information was not held under section 17 ? Commissioner found that certain questions had not been responded to at the time of the requests, but no further action required.
Relevant Statutory Provisions and Other Sources
Freedom of Information (Scotland) Act 2002 (FOISA): sections 1(1) (General entitlement); 14(1) (Vexatious or repeated requests); 17(1) (Notice that information is not held); 21(1), (4) and (5) (Review by Scottish public authority); 38(1)(b) and 38(2) (Personal information) and 73 (Interpretation) (definition of "information")
Data Protection Act 1998 (the DPA): sections 1(1) (Basic interpretative provisions) (definition of "personal data") and 2(a) and (e) (Sensitive personal data); Schedule 1, Part 1, paragraph 1 (The first data protection principle) and Schedule 2 (Conditions relevant for purposes of the first principle: processing of personal data) (condition 6(1))
The full text of each of these provisions is reproduced in Appendix 1 to this decision. Both appendices (Appendix 2 is referred to below) form part of this decision.
Scottish Ministers' Code of Practice on the Discharge of Functions by Public Authorities under the Freedom of Information (Scotland) Act 2002 (the Section 60 Code), paragraphs 65 and 66.
Facts
Mr Gupta made four separate information requests to the Scottish Court Service (the SCS). The SCS responded to these four requests, releasing some information.Following a review, Mr Gupta applied to the Commissioner for a decision.
The Commissioner found that the SCS had generally dealt with Mr Gupta's requests in accordance with Part 1 of FOISA,but ordered the SCS to release the dates of appointment of the two officials in request 1 as set out in Appendix 2.
Background
1.Mr Gupta made a single application to this Office regarding four separate, but related, requests to the SCS.Each request consisted of a very complex series of questions.This decision will consider the SCS's responses to each of these four requests.Appendix 2 details the questions that comprise each of Mr Gupta's requests, with some modification to remove, e.g., the names of individuals and details of the specific events to which the requests relate.
Request 1
2.Mr Gupta faxed the SCS requesting information regarding two of its employees and its procedures.The fax was dated 19 January 2006, but was received by the SCS on 27 January 2006.
3.The SCS wrote to Mr Gupta in response to this request on 24 February 2006, providing some of the information sought.However, it notified Mr Gupta in terms of section 17 of FOISA that some requested information was not held, and certain other information was being withheld under the terms of exemptions contained in sections 37 and 38 of FOISA.
4.On 30 March 2006, Mr Gupta faxed the SCS requesting a review of its decision.
Request 2
5.Mr Gupta faxed the SCS on 24 January 2006 requesting information regarding two court cases he had been involved with.
6.The SCS replied on 9 February 2006. It did not cite any exemptions under FOISA to withhold any requested information. However, for certain requests concerning the Auditor of Court, the SCS indicated that Mr Gupta should direct his requests to the Auditor or the Justice Department of the Scottish Government.
7.On 5 April 2006, Mr Gupta again faxed the SCS requesting a review of this decision.
Request 3
8.Mr Gupta faxed his third request to the SCS on 5 February 2006. This requested information regarding an individual employed by the SCS and letters from the SCS.
9.On 3 March 2006, the SCS wrote to Mr Gupta in response to his request for information. It provided information in response to some of the questions and also notified him that other information requested was not held in terms of section 17 of FOISA.
10.Mr Gupta subsequently faxed the SCS on 5 May 2006 requesting a review of this decision.
Request 4
11.On 6 March 2006, Mr Gupta faxed the SCS requesting information regarding an individual employed by the SCS.
12.The SCS responded to this request on 17 March 2006. It provided information in response to some of the questions, but withheld other information under section 38 of FOISA.
13.On 18 April 2006, Mr Gupta faxed the SCS requesting a review of its decision.
14.On 10 May 2006, the SCS notified Mr Gupta of the outcome of its reviews of all four of his information requests. In each case, it upheld its initial response in full.
15.Mr Gupta faxed my Office on 9 November 2006, stating that he was dissatisfied with the outcome of the SCS's review and applying to me for a decision in terms of section 47(1) of FOISA. Mr Gupta expressed dissatisfaction with the responses to his requests, and the conduct of the review by the SCS.
16.The application was validated by establishing that Mr Gupta had made requests for information to a Scottish public authority and had applied to me for a decision only after asking the authority to review its responses to those requests.
The Investigation
17.The SCS is an agency of the Scottish Ministers (the Ministers) and, in line with agreed procedures, the Ministers were notified in writing on 5 March 2007 that an application had been received from Mr Gupta. The Ministers were asked to provide my Office with specified items of information required for the purposes of the investigation and to comment on the application in terms of section 49(3)(a) of FOISA.
18.The Ministers responded on 27 April 2007 with the information and comments requested and the case was then allocated to an investigating officer.
19.The investigating officer subsequently corresponded with Mr Gupta to obtain a verified typed version of his four requests for information. Mr Gupta's requests to the SCS were hand-written and detailed and it was difficult to clearly read each question. The investigating officer also confirmed with Mr Gupta that he considered all his questions to be valid requests for information under section 1(1) of FOISA.
20.The investigating officer provided the Ministers with an electronic copy of Mr Gupta's requests and asked for comments as to:
a) whether the SCS considered each of Mr Gupta's questions to be valid requests for information,
b) which of these had been answered,
c) whether more information could be released to Mr Gupta, and
d) for information which had been withheld from Mr Gupta, which exemption in FOISA the SCS was relying upon to justify its decision.
21.The Ministers provided a detailed response to this request.Details of the exemptions that were applied to specific information requests are contained in the table in Appendix 2.
22.At this stage, the Ministers also confirmed that the SCS had passed part of request 1 to be handled by its external solicitors.The investigating officer was provided with a copy of a draft letter (dated 6 March 2006) prepared in response to this request, but the Ministers could not provide a finalised version or otherwise demonstrate that it had been sent. Mr Gupta was also unable to provide a copy of a letter bearing the date 6 March 2006.
23.After further exchanges with my Office, the Ministers confirmed that they would release additional information in response to some of Mr Gupta's questions which had not been answered when the SCS responded to Mr Gupta's original requests. The Ministers also confirmed that they would provide Mr Gupta with a copy of the 6 March 2006 letter prepared by the SCS's solicitors as they had not been able to establish that this had ever been finalised and sent.
24.The SCS released additional information to Mr Gupta on 26 October 2007. I have noted these additional responses in Appendix 2. I have marked information that was provided in the course of my investigation with "*" alongside my entry in the "provided" column in the table.
The Commissioner's Analysis and Findings
25.In coming to a decision on this matter, I have considered all the information and submissions that have been presented to me by both Mr Gupta and the Ministers and I am satisfied that no matter of relevance has been overlooked.
26.It may be helpful before considering the case in detail to note the limitations of what I will consider below.As will be clear from the table in Appendix 2, Mr Gupta's requests under FOISA are complex, and in some cases it is not clear what recorded information might be held by the SCS that would allow a response to be provided under the terms of FOISA.
27.In what follows, I will first address the question of the extent to which these requests can be considered requests for recorded information and, so, valid requests under the terms of FOISA. I will then address the question of whether the SCS has acted in accordance with Part 1 of FOISA in its responses to those requests that I have judged to be valid.
28.I would note, however, that Mr Gupta's requests and subsequent application to my Office form part of an ongoing series of correspondence between himself and the SCS in relation to complaints about his treatment by the SCS staff in various court cases to which he was a party. Within his correspondence with my Office and the SCS, Mr Gupta has raised matters that go beyond my remit to consider, such as the accuracy of the information held, and the conduct of officers in matters other than the handling of his information requests.
29.I must be clear at the outset that I can only consider the matters raised by Mr Gupta that relate to whether or not the SCS complied with the requirements of Part 1 of FOISA in responding to requests for recorded information. FOISA does not prescribe what information should be held in recorded form by a public authority, and I can only consider the information that is actually held.
30.In his requests for review, Mr Gupta also asked the SCS a number of new questions that had been prompted by the responses to his initial requests.
31.Under FOISA, I can only investigate the handing of information requests where the applicant has asked the authority to undertake a review of its response to the initial request before making an application to me. Since Mr Gupta only raised these new requests in his requests for review and did not subsequently asked that the responses to these questions be reviewed, I am unable to consider these new questions with this decision. I will only consider those information requests which I consider to be valid as specified in Appendix 2 of this decision.
To what extent did Mr Gupta's make valid information requests?
32.Section 1(1) of FOISA states that a person who requests information from an authority which holds it is entitled to be given it by the authority.This right is then limited by various provisions contained elsewhere in Part 1 and 2 of FOISA. "Information" is defined in section 73 of FOISA as "information recorded in any form". Given this definition, it is clear that FOISA does not usually require a public authority to create recorded information in order to respond to a request, or to provide information that is not held in a recorded form (e.g. about a person's intentions or opinions).
33.Mr Gupta's four "requests" described above actually comprised more than 120 separate parts or questions, some of which also contain multiple parts and cross refer to one another. As noted above, in some cases I do not accept that they can reasonably construed as seeking access to recorded information
34.I have considered carefully each part of the requests made by Mr Gupta to determine whether it can be considered a valid request for recorded information. Having done so, I have concluded that only around half of these are valid requests for information for the purposes of section 1(1) of FOISA. I have indicated my conclusion for each item in the list of Mr Gupta's questions included in Appendix 2. Those questions that I have concluded cannot reasonably be construed as seeking recorded information have not been considered further in this decision.
35.The questions I have concluded are not valid information requests for the purposes of FOISA include requests for explanations of individual's actions, confirmation of their awareness of certain procedures or documents and thinking process. I have also concluded that a number of closed questions requiring a 'yes' or 'no' answer, should not be considered requests for recorded information in the particular circumstances of this case.
Which questions have been answered, unanswered or information withheld?
36.I have studied the SCS's responses to Mr Gupta's questions and the responses which have been supplied by the SCS.I have marked "Y" in the column headed "provided" alongside each valid request where I am satisfied that the information requested by Mr Gupta has been provided to him. "*Y" indicates that some or all of the information was provided in the course of the investigation.
37.In some cases, the information was provided via reference to relevant procedures or manuals and so on. I am satisfied that, given the extent and terms of these requests, that the responses given to those requests I have marked "Y" were reasonable in the particular circumstances of this case.
38.Where I have not marked Y in the "provided" column in relation to a request which I consider to be a valid information request, some or all of the information sought has not been provided. For a number of these requests, the Ministers have submitted that the information is exempt information under the terms of section 38(1)(b) of FOISA, or that it is not held in terms of section 17 of FOISA. I will consider the SCS's application of these two provisions in turn below. Before doing so, I will consider two sets of questions where it appears that no response was provided by the SCS.
Questions where the SCS failed to provide a response
Request 1 ? requests passed to the SCS's solicitors
39.In handling this request, the SCS passed a number of questions on to its external solicitors to prepare a response.
40.I see no reason why a public authority cannot ask its solicitors to respond to an information request on its behalf, and consider that the response so issued is made as if it had been made directly by the public authority (provided of course that the response makes it clear that the solicitors are responding on behalf of their clients).
41.Therefore, although Mr Gupta has expressed dissatisfaction with the SCS's decision to handle his request in this manner, there is nothing in principle or in FOISA to prevent an authority from passing a request to the part of the organisation that can most appropriately handle the request, or those acting on its behalf.
42.In this case, it appears that when the request was passed by the SCS to its solicitors, a response was drafted. However, the Ministers have not been able to locate a final version of this letter or to confirm that this response was issued.Mr Gupta has not been able to supply a copy to me.
43.I have therefore concluded, on balance of probabilities, that the SCS breached the requirements of Part 1 of FOISA in the handling of those requests passed to the solicitors. The SCS failed to (either directly or through the solicitors acting as its agents) provide the information requested in line with the requirements of section 1(1), or to explain why it should be withheld by virtue of any of the provisions of Part 2, or to explain that it was not to be provided in line with any other provision contained in Part 1 of FOISA (for example because it was not held in terms of section 17(1)).
44.However, as noted above, the letter which was drafted was sent to Mr Gupta during the investigation, and so I do not require any steps to be taken in relation to this failure.
Request 2 ? requests directed to the Justice Department or Auditor of the court
45.For a number of the requests contained in request 2, the SCS responded that "the remaining questions should be directed to the Justice Department [of the Scottish Government] or the Auditor of Court. These are not matters for the SCS of which the Auditor is not a member".
46.In the Ministers' submissions to my Office, they indicated that this response was intended to state that the information sought was not held for the purposes of section 17 of FOISA.
47.However, I am satisfied that no response in these terms was provided to Mr Gupta at the time of his request.
48.Furthermore, I would note that both the SCS and the Justice Department of the Scottish Government fall within the scope of the "Scottish Ministers" for the purposes of compliance with FOISA. Although a number of apparently separate departments and agencies make up the Scottish Administration, these are a single legal entity in terms of paragraph 1 of Schedule 1 to FOISA. Therefore, if information was held by the Justice Department that would fulfil Mr Gupta's request to the SCS, then a response should have been provided that took such information into consideration.
49.As the SCS and the Justice Department form part of the same legal entity responsible for compliance with FOISA, I must conclude that the SCS acted inappropriately in simply telling Mr Gupta to make his response to another arm of that wider organisation.
50.In the light of the above, I have concluded that the SCS failed to comply with the requirements of Part 1 of FOISA in its responses to Mr Gupta's request 2, as marked in the table at Appendix 2. For these requests, the SCS failed to either provide the information requested in line with the requirements of section 1(1), or to explain why it should be withheld by virtue of any of the provisions of Part 2, or to explain that it was not to be provided in line with any other provision contained in Part 1 of FOISA (for example because it was not held in terms of section 17(1)).
51.However, I note that in subsequent correspondence concerning other requests, the SCS has provided Mr Gupta with some of the information sought in these requests.In the circumstances, and since Mr Gupta now has much of the information as a result of other enquiries, I will not require the SCS to take any action in response to this failure.
Withheld Information ? section 38(1)(b)
52.The SCS withheld information as follows:
Request 1
Section 38(1)(b) of FOISA relied on to withhold information in response to questions 1 (complete date), 2 (complete date), 3 (complete date), 4, 10, 13b, 13c, 19 (the repetition of 1, 2, 3, 4, 10, 13b, 13c for a second individual), 24 and 25.
Request 2
Section 38(1)(b) of FOISA relied on to withhold information in response to request w.
Request 4
Section 38(1)(b) of FOISA relied on to withhold complete dates requested in 2 and 5.
53.Section 38(1)(b) of FOISA exempts personal data from release, the disclosure of which to a member of the public otherwise than under FOISA would contravene any of the data protection principles contained in the Data Protection Act 1998 (the DPA).
54.The DPA defines personal data in section 1(1) as data which relate to a living individual who can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.
55.It should be noted that the exemption in section 38(1)(b) of FOISA, read in conjunction with section 38(2)(a)(i) or (b), is an absolute exemption in that it is not subject to the public interest test required by section 2(1)(b) of FOISA.
56.The Ministers submitted that the information requested (and detailed above) was exempt under section 38(1)(b) of FOISA on the basis that the information was personal data and that disclosure of the data would contravene the first data protection principle.
Is the information under consideration personal data?
57.Mr Gupta requested a variety of information relating to named individuals within the SCS. This information falls into the following categories:
a. Ethnic origin (request 1 - questions 4 and 19(4), request 2, question w.)
b. Full dates of joining SCS and further appointments (request 1 - questions 1, 2, 3, request 4 ? questions 2 and 5)
c. Annual salary (request 1 - questions 10 and 19(10))
d. Paid holidays and sick leave (request 1 - questions 13b, 13c and 19 (13b, 13c))
e. Career details (I have interpreted this as a request for the individual's curriculum vitae, or details held concerning the individual's previous positions) (request 1 ? question 24)
f. Whether an individual holds a British or American degree (request 1 - question 25)
58.In this instance, I am satisfied that the information in each of these categories relates to living individuals who are identifiable from that information or from that information and other information in the possession of the data controller. I am therefore satisfied that the information withheld under the terms of section 38(1)(b) of FOISA constitutes the personal data of those individuals as defined by the DPA.
59.I have also considered the definition of "sensitive personal data" in section 2 of the DPA and consider that the information requested regarding ethnic origin of individuals and regarding sick leave (but none of the other information withheld) falls within this definition.
Would release of the information breach the first data protection principle?
60.As noted above, the Ministers submitted that disclosure of the withheld information would breach the first data protection principle. This states that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 (of the DPA) is met, and in the case of sensitive personal data, at least one of the conditions in Schedule 3 (again, of the DPA) is also met.
61.In their submissions to me, the Ministers advised that the individuals concerned had no expectation that information regarding themselves would be made publicly available and that the release of such information could cause or be likely to cause substantial and unwarranted damage or distress to the individuals.
Sensitive personal data - Ethnic Origin/Sick Leave
62.I have considered whether any of the conditions in Schedule 3 of the DPA can be met in this case, and I am satisfied that they cannot. For this reason, I am satisfied that disclosure of the information requested by Mr Gupta concerning the ethnic origin of certain individuals and the physical or mental health or condition of those individuals would breach the first data protection principle.I am therefore satisfied that the exemption in section 38(1)(b) was correctly applied to this information.
Non-sensitive personal data
63.With the remaining personal information under consideration, I have first considered whether disclosure would be fair.In considering this test, it is appropriate to consider the expectations of the data subjects, and how closely the information concerned relates to their private lives.
64.In this case, I have noted that the categories of information at b-f in paragraph 57, although held in relation to the individuals' work, also relate closely to a person's life outside work ? their educational history and choices, career progression over considerable periods of time, absence due to illness and private leave and their precise salary. I also note that such information does not directly relate to the conduct of the individuals' duties on behalf of the SCS.
65.For the most part, I have concluded that disclosure of the information withheld in this case would be unfair, and so would breach the first data protection principle.In my view, disclosure would involve an intrusion into the private lives of these individuals that would be both unwarranted and unexpected.I have noted that, in responding to Mr Gupta's requests, the SCS has provided a large amount of information about its staff and their work. For example, Mr Gupta has been provided with salary information for the individuals concerned presented in terms of broad salary bands, albeit not precise figures.
66.While I have accepted the application of the exemption in section 38(1)(b) to most of the information withheld by the SCS, I have not upheld the application of this exemption to the dates of appointment to their current role for Person A, as sought in question 3 of request 1, or for Person B as sought in question 19.
67.I have noted that Person A and Person B are both members of the SCS Management Board, whose status as such is detailed in the SCS's annual report. I also note that the SCS's annual reports record the date at which an individual first took their post on the Management Board, in the report for that year.In these circumstances, I believe that these individuals would have different expectations about this information being disclosed than they would for less senior appointments during their careers, and than more junior officials would expect.
68.In these circumstances, I am satisfied that condition 6 of schedule 2 of the DPA could be met for the date of appointment for Person A and Person B to their present positions. Condition 6 covers processing (for example, through disclosure to the public) which is necessary for the purposes of legitimate interests pursued by the third party to whom information is disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
69.The application of condition 6 involves a balance between competing interests. Paragraph 6 requires a consideration of the balance between: (i) the legitimate interests of those to whom the data would be disclosed, which in this context are members of the public (section 38(2)(a) of FOISA) and (ii) prejudice to the rights, freedoms and legitimate interests of the data subjects which in this case are Person A and Person B. However, because the processing must be "necessary" for the legitimate interests of the members of the public to apply, only where (i) outweighs or is greater than (ii) should be personal data be disclosed.
70.I accept that Mr Gupta (like the public in general) has a legitimate interest in gaining access to information regarding individuals employed in senior positions by the SCS. Indeed, the SCS already discloses the dates of appointment of members of its management team, apparently in pursuit of such a legitimate interest.
71.I am also satisfied, given that information about the dates of appointment of members of the Management Board of the SCS is made routinely available, that disclosure of the information is not unwarranted and that the rights, freedoms and legitimate interests of Person A and Person B do not outweigh the legitimate interests of the public and Mr Gupta in disclosure of this information.
72.For the same reasons, I consider that disclosure of the information would not be unfair.
73.No separate arguments have been submitted to me as to why disclosure of this information would be unlawful.
74.I therefore do not accept that the dates of appointment of these two individuals to their current positions would breach the first data protection principle, and so I do not accept that this information is exempt under section 38(1)(b). I therefore find that the SCS breached Part 1 (and, in particular, section 1(1)) of FOISA by failing to provide this information to Mr Gupta, and I now require it to provide the full dates of appointment to Mr Gupta.
Information not held - Questions 13a and 19(13a) of Request 1
75.In its email of 26 October 2007, the Ministers confirmed that the SCS did not hold any information regarding the number of days that two individuals (Person A and Person B) were away from the office as part of their job.
76.The two individuals were employed in a senior capacity within the SCS, and I am satisfied, on the basis of the submissions provided to me by the SCS, that given the nature of their roles, records relating to their work would not exist in a form that would allow a response to this request to be gathered.
Technical matters ? conduct of review
77.In his application for decision by me, Mr Gupta expressed considerable dissatisfaction with the conduct of the SCS's review of his four requests. In particular, he took the view that the review had simply "rubber stamped" the responses to his initial requests.
78.I have some sympathy with Mr Gupta's concerns in this case. The letter stating the outcome of the review of a number of very complex requests was both brief and did not offer any reasoning for the full acceptance for the approach taken in the case. It did not address any of the specific points raised in relation to the various requests.
79.In their comments to my Office, the Ministers have acknowledged that the response issued by the SCS following Mr Gupta's requests for review was not as full as it should have been, and they apologised for this. However, they noted that staff at the SCS had attempted to respond to the large number of questions submitted by Mr Gupta, despite the nature of his correspondence.
80.The key elements of a review under FOISA are:
a. The review must be carried out and the applicant notified of the outcome within 20 working days of receipt of request for review.
b. Although FOISA itself is not prescriptive, the Section 60 Code states that procedures should be appropriate and accessible, fair and impartial and should allow for different decisions to be taken if appropriate (paragraph 65). It should generally be carried out by staff not involved in the original decision (paragraph 66).
81.I am satisfied that the SCS complied with the timescale for review, and that the reviews were conducted by an officer different from the one who first dealt with the request in each case.
82.However, I do have concerns about the adequacy of the process followed in this case, and particularly whether a thorough consideration of the initial responses and Mr Gupta's concerns was made. I note, for example, that the request for review in relation to request 4 was received by the SCS on 5 May 2006, and the response issued just three working days later.
83.That said, I have, despite some concerns relating to the adequacy of the process and the response provided, concluded that the SCS complied with the requirements of section 21 of FOISA (and particularly sections 21(1), (4) and (5)) in this case.
Further comments
84.I have noted in this case that the SCS has made considerable efforts to provide information in response to requests which were complex, voluminous and difficult to understand. Mr Gupta's requests contained a mixture of commentary and complaints, requests for recorded information and requests for comment or information that could not reasonably be expected to be held in a recorded form.In these circumstances, the manner and tone of Mr Gupta's communications made it difficult for the SCS to provide him with a full response to his request for information.
85.I agree with the Ministers that Mr Gupta's requests imposed a significant burden upon the SCS. The SCS indicated in correspondence with my Office that it had come to consider Mr Gupta's requests for information as vexatious for the purposes of section 14(1) of FOISA (which does not oblige an authority to comply with a request which is vexatious).
86.I will not make any judgement as to whether Mr Gupta's requests should have been considered to be vexatious in this case, as this matter was not raised when the SCS was handling the initial requests or requests for review.
87.However, I would note that I have indicated in previous decisions that the cumulative impact of an individual's information requests might on occasion justify a decision to treat further requests from the same requestor as vexatious for the purposes of FOISA. I would advise Mr Gupta to be mindful of the effect of his requests on the public authority receiving them, should he make further requests for information under the terms of FOISA. I would also suggest that he formulates any requests to seek only recorded information, and present them in a concise and legible manner.
Decision
I find that the Scottish Court Service (SCS) generally complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the four information requests made by Mr Arunabha Das Gupta as set out in Appendix 2 of this decision.
Request 1
With respect to request 1, I have found that the SCS misapplied the exemption in section 38(1)(b) (read in conjunction with section 38(2)(a)(i) or (b)) to the (specific) dates of appointment to their current positions for Person A (question 3) and Person B (request 19, repeating 3).In so doing, it breached the requirements of Part 1 and section 1(1).
I now require this information to be supplied to Mr Gupta within 45 days of the date of intimation of this decision.
I have also found that the SCS breached the requirements of Part 1 of FOISA by failing to provide certain information requested in line with the requirements of section 1(1), or to explain why it should be withheld by virtue of any of the provisions of Part 2, or to explain that it was not to be provided in line with any other provision contained in Part 1 of FOISA (for example because it was not held in terms of section 17(1)).
For the reasons set out in the decision, I do not require any steps to be taken in response to this breach.
Request 2
I have again found that the SCS breached the requirements of Part 1 of FOISA by failing to provide certain information requested in line with the requirements of section 1(1), or to explain why it should be withheld by virtue of any of the provisions of Part 2, or to explain that it was not to be provided in line with any other provision contained in Part 1 of FOISA (for example because it was not held in terms of section 17(1)).
Again, for the reasons set out in the decision, I do not require a response now to be provided.
Requests 3 and 4
I have concluded that the SCS complied in full with the requirements of Part 1 of FOISA when responding to Mr Gupta's requests 3 and 4.
Appeal
Should either Mr Gupta or the SCS wish to appeal against this decision, there is an appeal to the Court of Session on a point of law only.Any such appeal must be made within 42 days after the date of intimation of this decision notice.
Signed on behalf of Kevin Dunion, Scottish Information Commissioner, under delegated authority granted on 14 November 2007.
Margaret Keyse
Head of Investigations
17 December 2007
Appendix 1
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1 General entitlement
(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.
14 Vexatious or repeated requests
(1) Section 1(1) does not oblige a Scottish public authority to comply with a request for information if the request is vexatious.
17 Notice that information is not held
(1) Where-
(a) a Scottish public authority receives a request which would require it either-
(i) to comply with section 1(1); or
(ii) to determine any question arising by virtue of paragraph (a) or (b) of section 2(1),
if it held the information to which the request relates; but
(b) the authority does not hold that information,
it must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant notice in writing that it does not hold it.
21 Review by Scottish public authority
(1) Subject to subsection (2), a Scottish public authority receiving a requirement for review must (unless that requirement is withdrawn or is as mentioned in subsection (8)) comply promptly; an din any event by not later than the twentieth working day after receipt by it of the requirement.
[?]
(4) The authority may, as respects the request for information to which the requirement relates-
(a) confirm a decision complained of, with or without such modification as it considers appropriate;
(b) substitute for any such decision a different decision; or
(c) reach a decision, where the complaint is that no decision has been reached.
(5) Within the time allowed by subsection (1) for complying with the requirement for review, the authority must give the applicant notice in writing of what it has done under subsection (4) and a statement of its reasons for so doing.
38 Personal information
(1) Information is exempt information if it constitutes-
[?]
(b) personal data and either the condition mentioned in subsection (2) (the "first condition") or that mentioned in subsection (3) (the "second condition") is satisfied;
(2) The first condition is-
(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of "data" in section 1(1) of the Data Protection Act 1998 (c.29), that the disclosure of the information to a member of the public otherwise than under this Act would contravene-
(i) any of the data protection principles; or
(ii) [?]
(b) in any other case, that such disclosure would contravene any of the data protection principles if the exemptions in section 33A(1) of that Act (which relate to manual data held) were disregarded.
73 Interpretation
In this Act, unless the context requires a different interpretation-
[?]
"information" (subject to sections 50(9) and 64(2)) means information recorded in any form;
[?]
DATA PROTECTION ACT 1998
1 Basic interpretative provisions
(1) In this Act, unless the context otherwise requires ?
[?]
"personal data" means data which relate to a living individual who can be identified-
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual
2 Sensitive personal data
In this Act "sensitive personal data" means personal data consisting of information as to?
(a) the racial or ethnic origin of the data subject,
[?]
(e) his physical or mental health or condition,
[?]
SCHEDULE 1 THE DATA PROTECTION PRINCIPLES
PART I THE PRINCIPLES
1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
SCHEDULE 2
CONDITIONS RELEVANT FOR PURPOSES OF THE FIRST PRINCIPLE: PROCESSING OF ANY PERSONAL DATA
6. (1)The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject..
APPENDIX 2
Appendix 2 can be found in the PDF version of this decision.
