Open Update: FOI news from the Scottish Information Commissioner |
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FOI news from the Scottish Information Commissioner |
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Commissioner’s Annual Report highlights a record-breaking year The Scottish Information Commissioner’s 2024-25 Annual Report showcases a standout year for the Commissioner’s second year in office - with a key highlight being the publication of a record-breaking 335 decisions, the highest number since Scotland’s FOI laws were introduced more than twenty years ago.
And this wasn’t our only record – we also closed 784 cases last year - our highest ever, and 65% more than the previous year.
Our report also highlights that, across Scotland, over 98,000 information requests (both FOI and EIRs) were made last year, with 74% resulting in some or all of the information being provided to the requester. Clear evidence that the legislation is working, with people all across Scotland using their FOI rights to ask for, and receive, the information they need.
In terms of our performance, the report describes a very busy year for our small team: - We received 593 FOI and EIR appeals
75% of these fell under the FOI Act, and the remaining 25% under the EIRs.
- We carried out 255 interventions
Supporting public authority FOI performance. Most involved minor compliance issues, while 29 required more detailed input to resolve the issue.
- We responded to 840 enquiries
From requesters, public bodies, the media and other groups.
The report also highlights that: - 81% of appeals were made by members of the public
- 71% of our decisions found wholly or partly in the requester’s favour
We also report an increase in the appeals made following a failure to respond by public bodies, up to 25% this year from 22% last year. This increase highlights the key importance for authorities of responding within FOI 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.
This year the Commissioner also highlights the vital role of interventions in bringing improvements to public authority performance and delivering better FOI for all. He also makes clear, however, that this work must be adequately resourced if it is to have a sustained and meaningful impact.
Looking to the future, the Commissioner welcomes the laying of Katy Clark MSP’s Private Member’s Bill in the Scottish Parliament, where the FOI Reform Bill is proposed to bring some updates to the legislation, such as enhanced proactive publication through a code of practice, as well as faster designation of bodies providing key public services.
Our full Annual Report for 2024-25, which was laid in the Scottish Parliament on 27 October 2025, is available through the link below. |
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Appeal-Proof your FOI - Free lunchtime webinar for FOI staff Join either of our two free Appeal-Proofing webinars: we’ll suggest how to reduce the risk of reviews and appeals. These sessions will be a great opportunity to refresh your knowledge, ask questions, and pick up practical tips on handling requests effectively. We’ll also discuss some of the latest trends that have led to an increase in appeals to the Commissioner. Sessions are taking place on either: - Tuesday 25 November - 12:30-13:30
- Thursday 4 December - 12:00-13:00
Attendance is free, but booking is essential. Click here to sign up for the webinar! |
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Now booking – Holryood FOI Conference 2025 Have you ordered your tickets to this year’s Holyrood FOI Conference yet? If not – now is your reminder to get your tickets before it’s too late!
This year the event will be held at Dynamic Earth in Edinburgh on 18 November 2025. Speakers announced so far include Minister for Parliamentary Business and Veterans Graeme Dey MSP and Deputy Keeper of the Records of Scotland Gillian Mapstone, along with a session featuring all three previous Scottish Information Commissioners and current Commissioner David Hamilton, who will each reflect on where the legislation has been and where it is going.
Tickets are available from the Holyrood Events Website. |
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Get your nominations in for the eCase FOI Awards! Nominations for the eCase FOI Awards 2026 are now open – so, if you work in FOI, it’s time to give some serious thought towards putting your own hard work forward! You can nominate yourself, a colleague, your team or an element of your work – all you have to do is visit the eCase website and fill in some details by 30th November 2025.
Winners will be announced at a free conference in March 2026 - 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 – you can even pre-register for the conference which sells out every year! |
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FOI Reform Bill – read the Commissioner’s views The Scottish Parliament’s Standards, Procedures and Public Appointments Committee recently held a call for views on the Private Member’s Bill to Reform FOI, introduced by Katy Clark MSP. The Commissioner’s response to this call sets out his view on various elements of the Reform Bill, including the reform of the FOI Act’s ‘duty to publish’, whether FOI timescales should be ‘paused’ instead of ‘reset’ when clarification is required and whether the First Minister’s power to veto certain decisions of the Commissioner should be removed.
Read the Commissioner’s full response to the Committee’s call for views here |
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All tests must be met before applying the FOI Act’s ‘neither confirm nor deny’ provision Section 18 of the FOI Act allows an authority to refuse to confirm or deny whether information is held in certain circumstances.
For the Commissioner to uphold section 18, he must agree both that the information (if it exists and is held) could be withheld under a separate exemption, and that it would be against the public interest to reveal whether the information is held.
In Decision 228/2025, the requester wanted the service records of named deceased police officers (for a historical society). The authority neither confirmed nor denied that the information was held, but said that if it existed and was held, it would be exempt under the FOI exemption relating to health and safety. The Commissioner did not accept that the authority’s arguments were strong enough to engage this exemption, so he could not uphold the use of section 18.
Before relying on section 18, or indeed any exemption, public bodies must ensure that the necessary tests for exemptions specified in the FOI Act could be met for the information in question (if held). It is for the authority to make the case if it is withholding information in these circumstances, not the Commissioner. |
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How to avoid a ‘do it again’ decision… Each month, the Commissioner issues a number of decisions that require authorities to carry out a fresh review of the case.
Often this is because the authority has changed its position during the investigation. For example, sometimes an authority has attempted to apply an exemption to information which does not exist instead of notifying the requester that it’s not held (Decision 211/2025).
In some cases, (e.g. Decision 207/2025) the authority finds that information is held (after previously advising the requester it was not). In others, authorities want to apply new exemptions after the Commissioner has begun his investigation (Decision 218/2025 and Decision 222/2025).
Public bodies should ensure that, when they respond to a request for review, they undertake a full review - considering all the factors that may be relevant to the case (such as whether the request has been interpreted appropriately or whether appropriate searches have been carried out). This will reduce the number of times that the Commissioner has to ask authorities to do it again. |
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Is it really personal data…? The exemption for personal information in the FOI Act is regularly used. Many documents contain information that could identify a living individual (such as names, contact details, biographical information, etc). Often, disclosure of this information would breach data protection law, and the Commissioner can only order disclosure of personal information if he is satisfied that disclosure would not breach that legislation.
It’s important that public bodies ensure the definition of personal data is met when applying this exemption. In several cases this month authorities withheld information under this provision, but the Commissioner did not agree that the exemption was applied correctly in the circumstances.
In Decision 237/2025, we found that some of the information comprised the names of organisations, not individuals, and that some of the information was already published in the public domain – we required disclosure of this information. Elsewhere, in Decision 230/2025, we found that some of the opinions that were withheld could not be linked to an identified individual (as their details were withheld) and so we did not accept that this was personal data. |
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The public interest test must be considered thoroughly whenever it applies In Decision 210/2025, the Commissioner agreed with an authority’s assessment that information relating to an investigation into the handling of the Lockerbie case was exempt, with the balance of the public interest favouring non-disclosure.
In reaching this decision, however, the Commissioner reminded authorities that it should never be a foregone conclusion that the public interest will favour the non-disclosure of investigative information. As in any other case - and even where there may generally be a strong public interest in upholding an exemption - the public interest test should be considered fully, taking into account the specific circumstances of the case.
In this case, the general nature of the authority’s submissions contributed to the public interest assessment being, in the end, finely balanced. A more detailed, focussed and specific assessment would have undoubtedly presented a much stronger case. |
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6 November 2025 - Deadline for statistics submission for Quarter 2 2025-26 The window is still open for submissions of public authority FOI statistics for the period between 1 July and 30 September 2025. |
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18 November 2025 – Holyrood FOI Conference 2025 This year’s Holyrood Conference will celebrate 20 years of FOI, with speakers including all four past and present Scottish Information Commissioners. |
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25 November & 4 December 2025 - Appeal-Proof your FOI Free lunchtime webinar for FOI staff aimed at providing advice and guidance to help public authorities get their FOI response right first time and avoid reviews and appeals. |
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30 November 2025 – Deadline for submissions to eCase FOI awards 2026 You still have a couple more weeks to nominate yourself, colleague, team or organisation for an eCase FOI Award, visit the eCase website to find out more. |
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1 December 2025 – Scottish Public Information Forum (SPIF) Meeting An online meeting of the SPIF to celebrate International Human Rights Day. An update on the FOI Reform Bill will be provided. Booking is free but required to secure your space. |
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