Open Update: FOI news from the Scottish Information Commissioner |
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FOI news from the Scottish Information Commissioner |
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Resolving our backlog: an update on ‘Project Blue’ Euan McCulloch, Head of Enforcement
We’re making great progress in dealing with our case backlog – work that we refer to internally as ‘Project Blue’.
Through a combination of additional resources, reviewing our processes and modifying our priorities, we are ensuring that all appeals received since 1 January 2024 are progressed quickly, to enable cases to be concluded while the information is of most value. A key priority for these recent cases is to ensure they remain on track, with as high a proportion as possible closed within 120 days of receipt.
At the same time, we’re allocating older cases – which we call ‘blue’ cases (those received but not allocated for investigation by the end of 2023) - to investigators when we can, but only when we’re satisfied we can do so without impacting on the performance of our recent cases.
The good news is that more than half of our ‘blue’ cases have now been allocated for investigation and they figure significantly in the numbers of cases we have closed.
We also have a small number of additional cases which were already under investigation at the end of 2023. We’ve brought these down to single figures (5 at the time of writing) and are working to resolve these soon (ideally, by the end of 2024).
All of this work has meant that we’ve had an extremely busy year. We’ve issued over 270 decisions in 2024 and closed 473 cases in the seven months between 1 April and 31 October. This figure includes cases closed as invalid or withdrawn or settled during the investigation) and is nearly as many as we closed in the whole of 2023/24!
Consistently, we’re closing more cases than we receive each month, despite application numbers remaining high (an average of 53 a month so far in 2024/25). All of this reflects great credit on the whole team.
We need to keep a sharp focus on the figures. But, of course, this is something that all public authorities must do if the credibility of Scotland’s FOI regime is to be maintained.
But quality and culture need to go hand-in-hand with quantitative measures. We continue to apply the same quality measures as we always have in managing our casework and decision-making, and to foster a culture in which the basic right to information is always to the fore. And, while there will always be (limited) circumstances where there is a genuine need for information to remain secret, the fundamental principles of openness and transparency must continue to underpin every area of our work.
Euan McCulloch Head of Enforcement |
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Getting ready for the anniversary celebrations… We’re looking forward to celebrating both the 20th anniversary of Scotland’s FOI law and the 40th anniversary of the Campaign for Freedom of Information in Scotland at a special event in Glasgow on Friday 13th December. Tickets cost £30 for organisations and £15 for the public. The event, which is being supported by our office, will see a wide range of speakers reflect on these important milestones, including Lord Wallace of Tankerness, who steered the FOI Bill through the Scottish Parliament, Katy Clark MSP who is developing an FOI Reform Bill, and Sweden’s Helena Jäderblom, Chair of the Council of Europe’s Access Info Group.
The event, which is open to all, will run from 9:30am to 3pm at Trades House, Glasgow. Visit eventbrite more information and to book your tickets |
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eCase FOI Awards 2025 – very last chance to nominate! Calling all public authority staff: have you nominated for an eCase FOI Award yet? If not, you’re going to have to be quick - nominations close at 11pm on Friday 29th November!
The awards are a great way to recognise and celebrate the good work of FOI staff and, remember, you can nominate yourself, or a colleague, or your team or even an element of your work. Visit the eCase FOI Awards website to find out more…but remember, the clock is ticking! |
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Public Authority statistics now available for July to September 2024 Every three months we ask public authorities in Scotland to submit data on the number of requests they have received, and how they were handled. This provides both us, and the public, with an overview of the general health of FOI in Scotland.
The data for the period of July to September this year has now been collected and is available to view on our Statistics webpage.
We would once again like to thank all public authorities for their involvement in this important activity. |
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Christmas and New Year – don’t forget the public holidays! As we approach December, public authority staff and requesters should remember that the following public holidays are counted as ‘non-working’ days when calculating response times under FOI law: - 2 December 2024 - substitute day for St Andrew’s Day
- 25 and 26 December 2024
- 1 and 2 January 2025
Requesters should also remember that our online response calculator can be used to check when you should expect to receive a response to an FOI request. The guidance for our Response Calculator also includes some useful tips, including when the 20-working days starts, and what to do what if you haven’t received a response. |
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FOI requests must include the requester’s name FOI requests must include a requester’s name to be valid: FOI legislation requires it. For an emailed request it won’t be enough that the name is in the email address – it must be in the email itself.
This is important because the Commissioner is unable to investigate an FOI appeal if this isn’t included. Each year we refuse a small number of appeals for this reason. This is, understandably, extremely frustrating for requesters, but there are steps that both requesters and authorities can take to avoid this.
If you’re requesting information, please remember to include your name in any request correspondence – this will ensure you can exercise your right of appeal quickly if you’re unhappy. And, if you work for a public authority, please take time to ensure that the FOI requests you receive include a name - advising, where appropriate, that a request should be resubmitted with this included.
This will be particularly important in circumstances where a request might be appealed – e.g. where information is withheld, or where the requester may have another reason to be unhappy with the response. Authorities should take additional care to ensure that a name was included in the original request when a requester asks for a review – it will be much better for this to be addressed here, than when an FOI appeal is refused.
Our guidance on the name of the requester has more information on this important issue. |
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Requests for environmental information must be dealt with under the EIRs It’s important to remember that requests for environmental information must be handled under the EIRs and not the FOI Act.
The definition of environmental information is set out in the EIRs, and our guidance makes it clear that environmental information should be interpreted widely. Authorities should therefore always be alert for environmental information requests to ensure they are responded to under the right regime.
In Decision 233/2024 the requester asked for information about farmed salmon, including testing results and mortalities. The authority did not recognise that the request was seeking environmental information, and it responded under the FOI Act, refusing the request due to excessive costs.
The Commissioner investigated and concluded that the request was seeking environmental information. The authority therefore had to reconsider the request and provide a new response under the EIRs. |
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Is information already in the public domain? When an authority is considering withholding information, it is important that it checks whether any of the information is already in the public domain.
In Decision 231/2024 the requester asked a local authority for information about a sum that was charged for not providing affordable housing within a planned housing development. The authority handled the request under the EIRs and withheld several documents on the grounds that they were commercially confidential.
The Commissioner agreed that that the information was environmental and that some of the documents were sensitive and should be withheld. However, he discovered that one of the withheld documents was not only in the public domain but was published on the authority’s own website.
This case is a reminder that authorities need to understand the information they hold before responding to a request, and that they should not claim that information is sensitive when they have already published it online. |
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Staff training is an essential element of good FOI The Section 60 Code, which provides guidance for public authorities on compliance with FOI law, sets out that authorities should provide training to ensure all staff have sufficient knowledge of FOI and the EIRs. Staff training is a vital element of ensuring effective compliance, helping to significantly reduce the risks associated with getting FOI wrong.
We investigated a case last month where an authority originally withheld all the information a requester had asked for, as it considered it to be commercially sensitive. After the authority was notified of the appeal it undertook additional FOI training and, following this, re-evaluated its original decision to withhold all the information. It then went on to disclose most of the information, with only small amounts being withheld on the grounds that it was commercially sensitive.
As a result, the requester went on to withdraw their appeal to the Commissioner.
This case highlights the key importance of ensuring that relevant staff are fully aware of the requirements of FOI law, allowing them to make the right decision from the outset, reducing the likelihood of time-consuming reviews and appeals. |
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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. |
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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 further events and activities across 2025 to celebrate this milestone. |
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