CAIRNGORMS NATION­AL PARK AUTHORITY

Audit & Risk Com­mit­tee Paper 4 06/12/19

CAIRNGORMS NATION­AL PARK AUTHORITY

AUDIT AND RISK COMMITTEE

FOR DIS­CUS­SION

Title: SCOT­TISH INFORM­A­TION COM­MIS­SION­ER DECISION ON HAND­LING OF INFORM­A­TION REQUEST

Pre­pared by: DAV­ID CAMER­ON, DIR­ECT­OR OF COR­POR­ATE SERVICES

Pur­pose of Paper

1. This paper presents a review of the Authority’s hand­ling of the inform­a­tion request which has led the Scot­tish Inform­a­tion Com­mis­sion­er to issue a decision that the Author­ity had ​“par­tially breached” Envir­on­ment­al Inform­a­tion Reg­u­la­tions. While the Commissioner’s decision is that no fur­ther action is required by the Author­ity, it is appro­pri­ate in light of this decision to con­sider the Authority’s pro­cesses and con­sider wheth­er any les­sons can be learned from this case. The paper is inten­ded to sup­port dis­cus­sion by Com­mit­tee mem­bers as to wheth­er there is any per­ceived weak­nesses in under­pin­ning con­trols around the Authority’s hand­ling of inform­a­tion requests.

Decision Required

1. The Com­mit­tee is invited to con­sider the inform­a­tion set out in this paper and determ­ine wheth­er there are any addi­tion­al con­trols or actions asso­ci­ated with the Authority’s hand­ling of inform­a­tion requests war­ran­ted in light of les­sons learned from this case.

Con­text

1. This case rep­res­ents the first refer­ral of the Authority’s inform­a­tion hand­ling to the Scot­tish Inform­a­tion Com­mis­sion­er since 2015. The Author­ity deals with around 60 to 80 inform­a­tion requests each year under the Free­dom of Inform­a­tion (Scot­land) Act 2002 (FOISA). Some of these inform­a­tion requests, as with the case now under con­sid­er­a­tion, are determ­ined under the Envir­on­ment­al Inform­a­tion (Scot­land) Reg­u­la­tions 2004 (EIRs), which set out sep­ar­ate pro­vi­sions for hand­ling requests for inform­a­tion which are in some way linked to the environment.

2. The inform­a­tion request in this case was:

(i) All agen­das, minutes (or if not minuted then notes taken) for ALL meet­ings held by Cair­bridge Caper­cail­lie Work­ing Group (CCWG) as men­tioned on your web­site page https://cairngorms.co.uk/caring-future/cairngorms-nature‑2/capercaillie/latest-actions/

(ii) All agen­das, minutes for ALL meet­ings held by Cairngorm Caper­cail­lie Pro­ject Board (CCPB) as men­tioned on your web­site page https://cairngorms.co.uk/caring-future/cairngorms-nature‑2/capercaillie/latest-actions/

Or if these records are avail­able for me to view online, please dir­ect me to where I may do so as I have been unable to find them, hence this request.

1. A sum­mary of the case is presen­ted at the Scot­tish Inform­a­tion Com­mis­sion web­site regard­ing decision ¹⁶¹⁄₂₀₁₉: http://​www​.itspub​lic​know​ledge​.info/​A​p​p​l​i​c​a​t​i​o​n​s​a​n​d​D​e​c​i​s​i​o​n​s​/​D​e​c​i​s​i​o​n​s​/​2​0​1​9​/​2​0​1​9​0​0​5​7​0​.aspx

As such, the sum­mary of the case is not repeated in this paper.

Commissioner’s Decision and Les­sons Learned

Inform­a­tion Provision

1. The Scot­tish Inform­a­tion Commissioner’s decision is that the Author­ity ​“par­tially breached” Envir­on­ment­al Inform­a­tion Reg­u­la­tions as we failed to provide, at the out­set of the inform­a­tion request pro­cess, all the inform­a­tion which fell with­in the scope of the request. The Com­mis­sion­er high­lights that, by the end of the invest­ig­a­tion peri­od, the Author­ity had iden­ti­fied all inform­a­tion fall­ing with­in the scope of the inform­a­tion request and had vol­un­tar­ily provided that inform­a­tion to the applic­ant. How­ever, as the Author­ity had not iden­ti­fied this inform­a­tion with­in our ori­gin­al response and appeal pro­cesses, the Author­ity is deemed to have only par­tially com­plied with the EIRs.

2. The fol­low­ing factors are assessed to have inter­ac­ted in this case which res­ul­ted in the Author­ity not meet­ing its usu­al high stand­ards in respond­ing to inform­a­tion requests:

a) The inform­a­tion request on the face of it was straight­for­ward – there were no expect­a­tions of sens­it­iv­it­ies, nor any appar­ent reas­on to seek cla­ri­fic­a­tion. How­ever, as the pro­cess con­tin­ued it became appar­ent that staff were oper­at­ing under an assump­tion of inform­a­tion relat­ing to the groups which had com­menced with effect from the form­al start date of the fun­ded pro­ject, where­as the applic­ant also wished to receive inform­a­tion which pre-dated this offi­cial start date.

b) As the request relates to a com­munity led pro­ject, the Author­ity was oper­at­ing two par­al­lel inform­a­tion stor­age sys­tems: our own net­work togeth­er with a web based ​‘Base­camp’ inform­a­tion net­work which allows com­munity access. One record fall­ing in the scope of the inform­a­tion request had not been trans­ferred into Basecamp.

c) The Base­camp sys­tem had been used by staff as the primary records search, where­as a full search of the Authority’s own net­work ought to have also been undertaken.

1. The Author­ity apo­lo­gised to the applic­ant dur­ing the course of this pro­cess for its omis­sions in inform­a­tion pro­vi­sion. The Com­mis­sion­er also notes (para 41) that there is no evid­ence that the Author­ity delib­er­ately sought to with­hold or delay dis­clos­ure of information.

Pro­vi­sion of Advice and Assist­ance to the Applicant

1. The Commissioner’s view was that it ought to have been clear to the Author­ity from the applicant’s inform­a­tion request which inform­a­tion fell with­in the scope of the request (para 49). If it was not clear, then there is an oblig­a­tion on a pub­lic body to seek cla­ri­fic­a­tion from an applic­ant on their inform­a­tion requirements.

2. The under­ly­ing issue here is that, on review dur­ing the course of the Commissioner’s invest­ig­a­tion, it became appar­ent that officers did believe the request was clear and without need for cla­ri­fic­a­tion while the applic­ants them­selves were look­ing for a wider set of inform­a­tion. Until cor­res­pond­ence between the applic­ant and the Commissioner’s office cla­ri­fied this mis­un­der­stand­ing, it was not at all appar­ent to officers that there was a mis­match between the inten­ded scope of the request and the sub­ject and time peri­od scope on which records searches were being under­taken. As such, it was not at all appar­ent to officers in this case that any help or advice was required by the applicant.

Les­sons Learned

1. It appears that the key learn­ing point from this case is to seek to improve con­trols which aim to avoid any future mis­un­der­stand­ings about the scope of a request. We will amend the stand­ard let­ter tem­plate for future FOISA responses to include a sec­tion where respond­ing officers will set out any assump­tions or key search cri­ter­ia and dates used in identi­fy­ing inform­a­tion held in the scope of a request. This will allow an applic­ant to raise any con­cerns or points of cla­ri­fic­a­tion more fully and clearly in any appeal made to the Author­ity should they believe for any reas­on their request has not been dealt with adequately. This addi­tion­al con­trol meas­ure should sig­ni­fic­antly reduce the like­li­hood of such a scen­ario arising in hand­ling future FOISA requests.

Dav­id Cameron 21 Novem­ber 2019 davidcameron@​cairngorms.​co.​uk