The Scottish Information Commissioner received a number of similar applications for a decision from MacRoberts, Solicitors. These applications concerned requests for copies of the lists of properties in respect of which councils collect (and in some cases do not collect) the waste water charges and household water charges on behalf of Scottish Water. An explanation of the Commissioner’s reasoning in the following decision letter is set out in some detail in decision 056/2006 (MacRoberts and the City of Edinburgh Council): http://www.itspublicknowledge.info/appealsdecisions/decisions/Documents/decision6056.htm.

Decision 119/2006 MacRoberts and South Ayrshire Council

Requests for copies of the lists of properties in respect of which South Ayrshire Council collects the household water charge on behalf of Scottish Water – whether disclosure would constitute an actionable breach of confidence under section 36(2) of the Freedom of Information (Scotland) Act 2002 – whether the information is otherwise accessible under section 25 of the Act – the Commissioner held that the information is exempt in terms of section 36(2) of the Act

Lists of properties in respect of which South Ayrshire Council collects the household water charge on behalf of Scottish Water

Our Ref: 200502109

Mr David Flint
MacRoberts Solicitors
23 June 2006

Dear Mr Flint

DECISION NOTICE – SECTION 49 OF THE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002
DECISION NUMBER 119/2006
PUBLIC AUTHORITY: SOUTH AYRSHIRE COUNCIL (THE COUNCIL)

I refer to the application you made to me on 15 June 2005 for a decision as to whether the Council dealt with the information request you made in accordance with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA). In this case, the information requested consisted of a copy of the list of properties in respect of which the Council collects the household water charge on behalf of Scottish Water.

Please note that this is a formal decision notice under section 49 of FOISA.

I have now completed my investigation. In doing so, any points raised in your application and any comments submitted to me by the Council have been taken into account.

Background

The Council refused your request on the basis of the following sections in FOISA: section 25 (information otherwise accessible) and, in its submission to me, section 36(2) (the information was obtained by the Council from another person, including another such authority, and its disclosure by the Council so obtaining it to the public otherwise than under FOISA would constitute a breach of confidence actionable by that person or any other person).

Decision

After carrying out an investigation, I am satisfied that the Council was correct not to provide you with the information you requested as the information withheld from you is exempt from disclosure under section 36(2) of FOISA on the basis that the information was obtained by the Council from another person (in this case, Scottish Water) and disclosure by the Council of the information to the public would constitute a breach of confidence actionable by Scottish Water. The exemption in section 36(2) of FOISA is not subject to the public interest test contained in section 2(1)(b) of FOISA and I am therefore not required to consider the public interest in the disclosure or withholding of the information.

I have however found that the Council was wrong to rely upon the exemption under section 25 of FOISA, since the list of properties in respect of which the Council collects the household water charges on behalf of Scottish Water are not contained within Scottish Water’s publication scheme. The information requested is therefore not otherwise accessible in terms of being reasonably obtainable under Scottish Water’s publication scheme.

As you are aware, this particular application is very similar to another application by MacRoberts which I considered in detail in decision 056/2006, MacRoberts and the City of Edinburgh Council. That decision was sent to you by recorded delivery on 28 March 2006 and I understand that you have confirmed that you have received that decision. Whilst I am not specifically required by FOISA to provide reasons for my decisions, I wish to make it clear that the reasons for coming to this particular decision are set out in some detail in decision 056/2006, therefore I refer you to that decision for an explanation of my reasoning in this particular case.

Appeal

Should either MacRoberts or the Council wish to appeal against this decision, there is a right of appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days of receipt of this notice.

I have sent a copy of this decision to the Council.

This decision notice will be made available on my website in due course.

Yours sincerely

Kevin Dunion
Scottish Information Commissioner

Link to PDF file of decision 119/2006 (18.2 kb)