Open Update: FOI news from the Scottish Information Commissioner |
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FOI news from the Scottish Information Commissioner |
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The time is right for an FOI refresh
On 2 June a long-awaited Private Member’s bill to reform FOI was laid in the Scottish Parliament. The bill follows on from MSP Katy Clark’s 2022 consultation, which collected views from almost 100 stakeholders on the areas where Scotland’s FOI law might benefit from a refresh.
The draft bill, which is published in full on the Scottish Parliament’s website, proposes a number of changes. These include:
- Measures to support the extension of FOI to third parties providing public services
Including giving the Scottish Parliament power to designate bodies under FOI; reinforcing the Scottish Ministers’ duty to consider designation of new bodies; requiring Ministers to consider any proposals for designation that have been made by the Commissioner; and requiring that the Scottish Parliament debate and decide whether to approve Ministerial reports on the use (or otherwise) of its own designation powers.
- Reform of the FOI Act’s duty to publish information
Replacing the current ‘publication scheme’ approach with a requirement to comply with a new ‘Code of Practice’, enabling the publication approach to be updated in response to technological changes and developments in best practice.
- The introduction of a statutory requirement to appoint an FOI Officer
The FOI Officer would be responsible for ensuring the fulfilment of a number of duties within public bodies - including staff training, advising on compliance with FOI law and the codes of practice, and reporting on FOI performance to senior management.
- The removal of the First Minister’s power of veto
Currently the First Minister can veto the Commissioner’s decisions in some circumstances – this power has never been used.
- Pausing, rather than resetting, the 20-working-day response time when clarification is required
- New enforcement powers for the Commissioner
Including the ability to issue enforcement notice in relation to failures to comply with the FOI codes of practice.
- Strengthening the ability to bring prosecutions if information is deliberately destroyed to prevent its disclosure under FOI
Including enabling prosecutions to be taken forward where a request has not yet been made, but destruction was done to prevent disclosure in response to a future request.
Commissioner David Hamilton has welcomed the bill, noting that “after twenty years, it’s undoubtedly time for a refresh…by taking action to protect and update FOI now, we can ensure that our vital right to hold public bodies to account remains fit-for-purpose for the future.”
Read the Commissioner’s full statement on the FOI reform bill
We’ve also published a short summary setting out all the provisions of the reform bill. Find out more through the link below. |
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Share your views on the FOI reform bill What do you think of the proposals set out in the Private Member’s bill to reform FOI? Share your thoughts on the bill at an upcoming meeting of the Campaign for FOI in Scotland’s Scottish Public Information Forum (SPIF), taking place online at 10:30 on 16 June.
Speakers will include Katy Clark MSP, Scottish Information Commissioner David Hamilton, and representatives from the campaign. This is a key opportunity to hear from others and share your views on the future of freedom of information in Scotland. The event is free and open to all – click here to reserve your spot at the meeting! |
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A fresh look at Scottish FOI The Scottish Parliament Information Centre (SPICe) has published a new briefing which provides a detailed overview of FOI in Scotland. It covers key areas such as who the legislation applies to, how requests should be handled, the codes of practice, the Environmental Information Regulations (EIRs), and how the law has changed and evolved. The briefing will be a useful resource for anyone interested in, or working with, FOI in Scotland.
Read SPICe’s new FOI briefing here |
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Our old IT equipment is winging its way TO Ukraine… Following the recent purchase of new keyboards and monitors for our staff, we donated our old equipment to a charity which collects, refurbishes and redistributes computer equipment, with our equipment heading off to be used by schools and charities in Ukraine.
Commissioner David Hamilton and our Ukrainian colleague Alex Bezverkhnia handed over this vital equipment to the charity Reusing IT at the end of May.
If you want to know more about the work of Reusing IT, or if your organisation has any equipment that it would like to donate, visit www.reusingit.org for more information. |
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While we’re all wearing socks FROM Ukraine… Meanwhile, our team have been keeping their feet warm in recent months thanks to handmade socks shipped direct from Ukraine as part of a ‘Socks for Books’ project, organised by our colleague Alex, Alex’s friend Viktoriia, and Viktoriia’s mum in the Sumy region of Ukraine…
Curious? You can read more about their ‘Socks for Books’ project (and maybe even enquire about owning your own pair of these cosy marvels…) through Viktoriia’s guest post on our website! |
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Our busiest month…again! In our last newsletter we highlighted that April was our busiest ever month, with the highest number of appeals received ever. Well at the risk of repeating ourselves, that record has now been broken, with 92 new appeals received in May – 11 more than April’s previous record.
You can keep up to date with the progress of all of our appeal cases using our new ‘current investigations’ dashboard. |
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Making the case that a request is vexatious or repeated Section 14 of the FOI Act allows a public body to refuse an information request if the request is either ‘vexatious’ or ‘repeated’ – with ‘repeated’ meaning that it is identical or substantially similar to a recent request from the same person.
In Decision 082/2025, an authority had claimed that a request for copies of an email and related meeting minutes was both ‘vexatious’ and ‘repeated’. Following investigation, however, we found that neither provision applied.
The information request covered minutes from distinct meetings held on different dates, and the authority was unable to highlight any previous request that it considered to be substantially similar.
With regard to the ‘vexatious’ provision, the authority argued that the request imposed a significant burden, was made as part of a campaign to discredit it and had the effect of harassing its staff. However, we were only able to give limited weight to these assertions, and were also not convinced that the request lacked a serious purpose.
We therefore concluded that the request, in this case, was not vexatious. However, the decision also notes that this does not mean that any future request from the requester would not be vexatious, highlighting that the FOI right to request information should not be abused.
The Decision also considers other routes the authority could have taken to try and resolve this case without relying on the section 14 provisions. |
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Authorities should ensure that all relevant tests are met before applying an exemption or exception Under FOI law, information can only be withheld when all the legal tests that allow non-disclosure are met.
Decision 089/2025 concerned a request for tender documentation regarding the development of two country parks. The Environmental Information (Scotland) Regulations (EIRs) contain an exception which allows information to be withheld if disclosure would harm the confidentiality of commercial or industrial information. This exception will apply when confidentiality is provided for by law to protect a legitimate economic interest.
Following investigation, we were not satisfied that all of the withheld information was covered by the exception. While the information may have been supplied as part of a commercial activity, we found that not all of it was ‘commercial’ or ‘industrial’ in nature.
We also found that, while some information was subject to an obligation of confidentiality, that obligation did not apply to information which was already in the public domain. Similarly, we found that the disclosure of some information would not cause the degree of harm required for the exception to apply.
We therefore found that some of the information covered by the request could be disclosed. |
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Is information really otherwise accessible? Both the FOI Act and the EIRs allow requests to be refused if the information can be obtained by the requester through another route.
In Decision 091/2025 we considered whether an authority had been entitled to rely on the ‘publicly accessible’ provision in the EIRs for a request about a farm inspection.
The authority had told the requester that some information was available on its website, while other information had been provided in previous correspondence.
During our investigation the authority accepted that the information was not publicly available and confirmed that it did not hold information that would answer the specific request. It had, it said, referred the requester to online material to provide general information about its approach to related inspections.
This approach, however, was unclear and confusing for the requester. If information is publicly accessible, authorities should direct requesters to where the specific information can be easily found…and, if information is not held, they should, of course, make this clear in their response.
It can undoubtedly be helpful to provide contextual or background information to a requester but, if doing so, authorities should be clear that this is what they are doing. A lack of clarity in these situations will often result in long, protracted and confusing correspondence, which can cause problems for everyone involved. |
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16 June 2025 - Scottish Public Information Forum (SPIF) meeting Online meeting of the SPIF, open to anyone with an interested in FOI and related issues. Speakers will include Katy Clark MSP and Commissioner David Hamilton. |
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7 July 2025 - Collection of FOI statistics for Quarter 1 2025-26 opens Opening date for submission of public authority FOI statistics covering the period between 1 April and 30 June 2025. |
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26 September 2025 - Scottish Public Information Forum (SPIF) meeting SPIF meeting to mark International Right to Know Day 2025. Registration details to be announced in due course. |
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18 November 2025 – Holyrood 2025 FOI Conference Save the date for the 2025 Holyrood FOI Conference, taking place in central Edinburgh. Further details will be available shortly. |
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