Open Update: FOI news from the Scottish Information Commissioner |
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FOI news from the Scottish Information Commissioner |
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Focussing on the next chapter of FOI The Scottish Information Commissioner laid his 2023-24 Annual Report before the Scottish Parliament on 30 September 2024.
The report, which covers the transition between the third and fourth Scottish Information Commissioners, details the performance of the organisation over that year, while also setting out Commissioner David Hamilton’s early priorities for his term of office.
In terms of performance, the report describes a busy year for our small team: - We received 590 FOI and EIR appeals, a 12% increase on previous year
- We carried out 296 interventions to support public authority FOI performance
- We responded to 859 enquiries from the requesters and public bodies
The report also highlights that: - 79% of appeals were made by members of the public
- 70% of our appeals found wholly or partly in the requester’s favour
- Only 6% of respondents to our public awareness polling believed that FOI was a waste of public money
We also report a significant increase in the appeals made following a failure to respond by public bodies, up from 23% last year to 32% this year. This data highlights the key importance for authorities of responding within FOI response timescales to avoid time-consuming reviews and appeals. Our Responding on Time self-assessment tool is designed to help authorities improve in this essential area.
In terms of the Commissioner’s immediate priorities, the report highlights the vital role of interventions in bringing improvements to public authority performance and delivering better FOI for all. It also makes clear, however, that this work must be adequately resourced if it is to have a sustained and meaningful impact. The Commissioner also sets out his view that Scotland’s FOI Act is in need of some revision if it is to remain fit for purpose in our increasingly digital world.
And finally, the Commissioner makes clear that his work to eliminate the backlog of FOI appeals remains an urgent and ongoing priority, noting that, at the time the report was drafted, our new approach had reduced the backlog by one third.
And how are we doing now? Well, we’ll be providing a full update on our progress to reduce the backlog in our next newsletter, so watch this space…
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Commissioner visits Ukraine Scottish Information Commissioner David Hamilton recently took part in a conference in Ukraine to develop a framework to balance information and security concerns for countries operating under martial law.
The conference, which was organised by United Nations Development Programme in conjunction with the Ombudsman of Ukraine, set out to create a UN backed framework for authorities to adopt in times of conflict.
Read more about the Commissioner’s visit here |
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Join us to celebrate some important FOI milestones... On December 13 the Campaign for Freedom of Information Scotland will be hosting a double celebration – marking both its own 40th anniversary and the 20th anniversary of Scotland’s FOI law. The event, which is supported by the Scottish Information Commissioner, will feature a range of speakers reflecting on these important milestones, including the architect of Scotland’s FOI law, Lord Wallace of Tankerness, Sweden’s Helena Jäderblom and Commissioner David Hamilton, along with MSPs and members of the Campaign itself.
The event will run from 9am to 3pm at Trades House, Glasgow, and is open to all! Tickets cost £30 for organisations and £15 for the public.
Find out more and book your tickets here |
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Holyrood FOI Conference 2024 - new speakers announced The 2024 Holyrood Conference has added several new speakers to its line-up, with Lord Wallace of Tankerness, Scottish Public Services Ombudsman (and former Scottish Information Commissioner) Rosemary Agnew, the Campaign for FOI’s Carole Ewart and Margaret Keyse, former Head of Enforcement in our office, all joining the line-up in recent weeks.
Find out more about this year’s event on the Holyrood FOI Conference website |
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eCase FOI Awards 2025 - have you nominated yet? Nominations for the eCase FOI Awards 2025 are now open – have you thought about entering?
You can nominate yourself, a colleague, your team or an element of your work – all you have to do is complete the short nomination form by 29th November 2024.
Winners will be announced at a free conference in March 2025, so please consider nominating yourself, a colleague or even the whole team! It’s a great way to recognise and celebrate the good work being done by FOI practitioners.
Visit the eCase FOI Awards website to find out more - and take the first step towards a possible award! |
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Consider adding the Commissioner to your Safe Senders list We recently changed our website address to www.foi.scot, and to complement this we also changed our email address domains to @foi.scot.
For the most part, this has been a smooth transition for everyone we are in contact with. However, there have been a few instances of individuals not receiving our emails. Therefore, to ensure full coverage, we once again recommend adding our domain to your Safe Senders list. This can, for example, typically be found as a tab in your ‘Junk Email’ Options within Microsoft Outlook. |
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Making the case for neither confirm nor deny Section 18 of the FOI Act allows an authority to refuse to confirm or deny whether information is held in certain circumstances. For this provision to apply, the information must, if it was held, fall within the scope of one of a limited number of exemptions, and the public interest must also favour neither confirming nor denying whether the information is held.
When an authority is seeking to argue that the public interest lies in neither confirming or denying whether relevant information is held it must provide appropriate submissions to justify this. We have had two recent cases where found that an authority failed to make the case for the use of section 18.
Decision 200/2024 concerned a request for details of legal advice provided to the First Minister regarding the holding of a further Scottish independence referendum without UK consent. When considering this case, we took account of publicly available information which the Scottish Ministers acknowledged would be considered by most people to have involved the provision of legal advice to the Ministers. We went on to conclude that Ministers had not been entitled to rely upon section 18, and Ministers went on to provide a revised response which did not rely on this provision.
In Decision 201/2024 we were asked to consider a request for information relating to two unidentified victims of the Lockerbie bombing. The authority relied on section 18 on the basis that, if the information was held, a refusal notice could be issued under exemptions relating to investigations and law enforcement.
While we agreed that, if the information was held a relevant exemption would apply, we did not accept that confirming whether or not it was held would harm the ongoing investigation and be contrary to the public interest.
We found that the authority’s arguments for applying section 18 focussed more on the actual disclosure of any relevant information (if it existed and was held), as opposed to confirmation or otherwise of its existence. For that reason, we did not uphold the authority’s application of section 18. |
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Emissions data has a special status under the EIRs Requests for environmental information must be responded to under the Environmental Information (Scotland) Regulations (the EIRs). Like the FOI Act, the EIRs allow information to be withheld in certain circumstances, but the EIRs also set out that some exceptions won’t apply if the information relates to ‘emissions’.
In Decision 204/2024 an authority realised during the course of our investigation that the exception they were relying on couldn’t be applied, because the information – which concerned a broken waste water pipe – related to an emission.
As a result, the authority went on to disclose the majority of the withheld information.
When responding to requests for environmental information, authorities should take care to consider whether the information relates to an emission, and deal with the request accordingly. |
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A different regime... While our role enforcing Scotland’s FOI law is well known, the Commissioner also has a lesser-known regulatory duty in relation to the INSPIRE (Scotland) Regulations 2009. We recently issued only our second Decision under these regulations.
The purpose of INSPIRE is to create an electronic network of spatial information which is accessible to the public. ‘Spatial information’ will be geographic information and, for example, will include postcode and map data. Under INSPIRE, authorities are required to publish certain spatial information.
In Decision Notice 198/2024, we considered whether a request for an interactive map showing adopted roads should have been responded to in line with INSPIRE, as opposed to the EIRs.
In doing so, we were mindful of the INSPIRE requirement relating to the nature of the information which must be made available. In this case, the Commissioner accepted that INSPIRE did not require the authority to publish information about the adoption status of road. However, we agreed with the Council that making information about adopted roads available would be entirely consistent with the goals of INSPIRE. We therefore welcomed the intention of the authority to publish adopted roads information via the Spatial Improvement Service in the near future.
The Commissioner concluded, however, that the Authority had been correct to respond to the request under the EIRs. |
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1 November 2024 - Survey for Quarter 2 FOI statistics closes Submissions to our public authority statistics portal will close at 5pm on Friday. If you haven’t submitted, please do so now, to ensure you submit on time! |
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6 November 2024 - eCase Webinar - The FOI Clinic: Body of Evidence Free lunchtime webinar, exploring the information that FOI regulators expect you to provide in support of an FOI appeal. Find out more about the FOI Clinic webinar. |
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29 November 2024 - eCase FOI Awards closing date Nominations for the eCase FOI Awards 2025 will close at 11pm on 29 November. |
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13 December 2024 - Campaign for FOI anniversary event Event celebrating both the 40th anniversary of the Campaign for FOI in Scotland and the 20th anniversary of Scotland's FOI law, taking place in Glasgow. Find out more about the anniversary event. |
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1 January 2025 - 20th anniversary of Scottish FOI Rights 1 January 2025 will mark the 20th anniversary of the implementation of Scotland's FOI law. We will be planning some events and activities across 2025 to celebrate this milestone. Watch this space! |
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