HM Insights

Why a sick note is no excuse for failure to identify relevant information for Freedom of Information requests

A recent decision notice issued by the Scottish Information Commissioner highlights the importance of Scottish public authorities' being able to identify, locate and retrieve all information relevant to a request received under the Freedom of Information (Scotland) Act 2002 (FOISA).

Even in a situation where the information is contained within absent staff members' e-mail inboxes, this will be no excuse for failing to identify and disclose this information within the statutory timescale.

Where the information exists within its possession, it is the authority's responsibility to have the records management and procedures in place to meet the FOISA requirement of responding to requests for information within 20 working days of receipt.

What's so difficult?

While the timescales for response appear, on paper at least, to be reasonable, in reality, Scottish public authorities can experience difficulties in retrieving, collating, reviewing and redacting (if necessary) the information relevant to a request prior to disclosure.

This is principally because information held by Scottish public authorities in connection with a particular matter is seldom held within one, neatly compartmentalised paper and/or electronic file (despite the records management requirements of FOISA). More often than not, such information is held in a scattered manner within different parts of the authority and on behalf of the authority by, for example, its legal and other professional advisers.

While holding information within a centralised system is conducive to effective records management, the only record of specific information is sometimes found within an individual member of staff's workplace e-mail inbox, personal documents folder or possibly even personal e-mail account inbox. This can give rise to accessibility difficulties in situations where members of staff are absent from the office for extended periods of time or have left or retired from Scottish public authorities.

The general approach in these circumstances has been for Scottish public authorities to include out of office notifications within auto-reply e-mail messages, requiring applicants to re-direct their requests to others within the authority. In principle, this offers a manageable and easy-to-use solution but it does not absolve Scottish public authorities from complying with requests within the statutory timescales, particularly if the applicant takes a number of days from receipt of the auto-reply message from the initial contact to re-direct the request to the alternative contact. The clock starts "ticking" from the moment that the request is received by the initial contact and the Scottish public authority only has the residue of the 20 working day timescale to issue its response to the applicant.

A timely reminder

The Scottish Information Commissioner issued her decision notice in Mr Jon Darch and Glasgow City Council last week, in which the Council discovered an e-mail when undertaking a search of the workplace e-mail inbox of an absent member of staff during the Commissioner's investigation. The member of staff's e-mails were not monitored or forwarded to another contact during the period of absence.

The Commissioner found that the Council had failed to identify, locate and retrieve the information that it held relevant to Mr Darch's request and had inadequate arrangements for searching for information. The Commissioner directed the Council to her guidance, which provides that Scottish public authorities need to put arrangements in place for the handling of requests within statutory timescales in these circumstances.

The decision notice is a pertinent reminder for Scottish public authorities of the need for effective intra-organisation records management. Had the e-mail within the absent member of staff's inbox been saved to a centralised document management system or network drive, Mr Darch would have received all of the information to which he was entitled at first instance and an application to the Commissioner may have been avoided altogether.

Reviewing policies and procedures

In light of the fact that FOISA is now more than 10 years old, the decision notice represents a timely opportunity for Scottish public authorities to review their request handling procedures, particularly in relation to retrieving and reviewing information held, as there has been significant progress in the interim period in relation to how records are managed and stored.

Policies also need to be revisited to notify staff of the fact that searches of the content of their workplace e-mail accounts may be undertaken for the purpose of responding to FOISA requests, requests for environmental information under the Environmental Information (Scotland) Regulations 2004 and subject access requests for personal data under the Data Protection Act 1998.

Get in touch

Kelly Sleight is a Solicitor in Harper Macleod LLP's Public Sector Group. If you would like to find out more about this issue, please get in touch