Eileen Barr: New SIC decision on RSL’s handling of FOI request

Eileen Barr, a solicitor in TC Young’s Social Housing Team, outlines what can be learned from a recent decision notice by Scottish Information Commissioner on a Registered Social Landlord’s (RSL’s) handling of a Freedom of Information (FOI) request.

The Scottish Information Commissioner (SIC) has recently published one of the first decision notices on a RSL’s handling of a FOI request.

Whilst the decision notice (which can be viewed here) does not answer some of the bigger questions the sector has about their new FOI duties it does act as a reminder of some key aspects of FOI compliance. So, what can RSLs learn from this decision?

What was the decision about?

The decision concerned a failure to respond to a request for review. Under FOI, where a person is dissatisfied with a RSL’s handling of their request (or has not had a response within the legal timescales) they can ask that the RSL performs a review. If a request for review is received a RSL has 20 working days to respond and can choose to: uphold their original decision; substitute the original decision or make a decision (where the initial request was not responded to). There are only a handful of circumstances where a RSL does not have to conduct a review when asked.

In this case no response to the request for review was made. The decision states that this may have been due to the fact that the RSL’s relationship with the requester had deteriorated to a point where the RSL no longer corresponded with them. Despite recognising this as a contributing factor to the RSL’s failure to respond, the SIC still found the RSL to be in breach of its FOI obligations.

What can RSLs learn from this?

  • The fact that a person is under a ‘no-contact protocol’ or unacceptable action policy is unlikely to impact their ability to make a FOI requests. This can often be difficult for RSLs to manage. SIC has produced additional guidance and there may be other options open to RSLs to manage the flow of requests.
  • What constitutes a request for review is a low bar. A person doesn’t need to explicitly ask for a review and RSLs should train staff to recognise when someone is asking for one.
  • RSLs are only subject to FOI when doing certain things (more info here). In this decision the requester asked for a property’s maintenance history. SIC confirmed that this was within the RSL’s ‘FOI functions’. Whilst we don’t have any further information about the nature of property (was it used purely for social housing? Was it a mixture of factored and social housing?) it is interesting to note that SIC appears to specifically consider this point when dealing with appeals. RSLs should always consider if a request falls under their ‘FOI functions’ whenever one is received.
  • SIC did not question if this request should have been handled under the Environmental Information (Scotland) Regulations (EIRs) despite a number of SIC decisions finding that requests about building maintenance fall under the EIRs. This shows there are often exceptions to what you might think falls under EIR and RSLs should consider each request on an individual basis when deciding which regime it falls under.
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