FOI Review - Library statistics 2021

Review 101002905213

Original FOI Request - Library Statistics 2021 - 101002887079

I am writing to request an internal review of Moray Council's handling of my FOI request 'Library Statistics 2021'.

The extent of the reasoning you have given for refusing to provide the information requested is:

"Disclosure of the requested information could substantially prejudice commercial interests and so it is exempt under section 33(1)(b) of the Freedom of Information (Scotland) Act 2002, commercial interests."

In other words, you have provided nothing other than the actual exemption, with no explanation. This is a flagrant violation of all guidance of the FOI(S)A.

I will argue against that particular exemption, but firstly, a few snippets of the briefing notes of that exemption:

"All of the exemptions in section 33 are subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in maintaining the exemption. "

I don't believe you have included any public interest test? If you have you should include it in your response. The presumption with FOI is that it is in the public interest - the onus is on the authority to show that it is not in the pubic interest to reveal the information.

"In seeking to withhold information under section 33(1)(b), the authority must ensure that it sets out whose commercial interests are likely to be prejudiced, as well as the particular nature of those interests"

I don't believe you have done any of this in your response? You need to fully explain how you think it is likely that releasing your information would prejudice commercial interests.

As you can see, I think the response is inadequate. But moving on to the exemption itself, I believe that you must believe that CIPFAs commercial interests could be prejudiced, though you haven't said this but have left it to guesswork.

It would be incorrectly interpreting the spirit of the commercial prejudice exemption. The data requested is core library data, collected by the library service. This includes public information such as the number of loans, the number of borrowers, etc. CIPFA use this data for their commercial activities, but the raw data remains fundamental to public libraries. Logically you could also attempt the same exemption if I simply asked for the number of libraries you have. But I don't think any reasonable person would consider that to be prejudicing commercial interests. What you are arguing for is for CIPFA to have exclusive access to public library data for their commercial activities. That is unreasonable.

If you look at briefing notes for the exemption, you will find examples that illustrate situations where organisations could have their commercial activities prejudiced. For example, the exemption could apply if I were requesting information about CIPFAs performance. Or if they were subject to a competitive tendering process and I requested their particular rates, in order to undercut them. This is clearly not the case here.

Response 09-11-21

Following your request for review of our response to the FOI you submitted, Library Statistics 2021 - 101002887079, a review meeting was held remotely on 1st November 2021. In attendance were the Acting Records and Heritage Manager, Acting Principal Librarian, Senior Solicitor and Relief Information Co-ordinator.

Our initial response to your request was discussed. It was agreed that, whilst we cited exemption 33(1)(b), we did not set out whose commercial interests are likely to be prejudiced, or the particular nature of those interests. We also did not provide an explanation of our consideration of the public interest test. We apologise for these omissions.

The public interest test was discussed, and it was agreed that the public interest is better served by the disclosure of the requested information. We have therefore decided to provide the raw data that was provided to CIPFA within the 2020-21 Library Statistic return, which can be viewed here.