Open Update: FOI news from the Scottish Information Commissioner |
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FOI news from the Scottish Information Commissioner |
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FOI and social care – time to share your views Should freedom of information (FOI) rights cover organisations that run care services in Scotland?
This question is at the heart of a new consultation by the Scottish Government, which is seeking views on whether FOI should be extended to cover private and third sector / charitable organisations that run care home and ‘care at home’ services in Scotland.
Under current rules, people - including families, carers and care recipients themselves - have a right to access information from services provided by public bodies, such as local authorities and the NHS. However, if someone is receiving a similar service from a private provider, there are no equivalent rights - meaning, for example, no legal right to access information on the standard, cost or quality of the services provided.
Issues around the quality of care services and the openness and transparency of providers have, of course, come to the fore over recent years - heightened by the impact of the pandemic. Should all bodies providing these services be subject to the transparency requirements of FOI? And, if so, should there be limits on those requirements?
The Commissioner will be submitting his own response to the consultation shortly, which will support the proposal to extend FOI. But the Scottish Government would also like to hear from you - whatever your views on this issue may be.
You have until 30 March 2026 to make your views known - click on the link below to help inform the next steps of this important debate! |
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Now booking – Edinburgh eCase FOI 26 Conference The 2026 eCase FOI Awards conference is coming to Scotland this year, taking place in Edinburgh on 4 March 2026. And the best news? Attendance at the conference is free to FOI staff, making it even easier to access to a full day of FOI learning, networking and information-sharing to help improve FOI practice across the public sector. If you work in FOI, we hope to see you there!
The full programme is due to be announced shortly – in the meantime, you can register your interest in attending this exciting event at www.ecase.co.uk/foi26/ |
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Also booking – FOI Fest 2026 The eCase Conference isn’t the only event coming up over the next few weeks - 2026 also sees a new event on the FOI calendar – FOI Fest 2026.
FOI Fest is a free one-day conference taking place online and in person on 19 February, which aims to bring together anyone who is passionate about information rights. Speakers and attendees will include journalists, campaigners, voluntary organisations, academics, government and FOI staff, exploring the impact of FOI across the UK over the last 21 years, and consider how it might be strengthened, extended, or used more effectively.
FOI Fest will take place at Birbeck University in London, but the main plenary sessions across the day will also available to view online.
Find out more at: https://pretix.eu/mysociety/foifest2026/ |
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Interventions – an open and closed case In December the Commissioner launched an intervention at the highest level of our intervention procedures (Level 4) to support improvements in the culture and practice towards FOI in NHS Fife. The intervention aims to address a number of significant issues which have come to light during our investigations over recent months, including issues around the interpretation and handling of requests, the governance of NHS Fife’s FOI function and the engagement with our staff during the investigatory process.
The Commissioner’s team is looking forward to working constructively with the board over the coming months to resolve these issues and support improvements in its FOI function, to the benefit of all stakeholders and service-users.
We are also happy to report that we closed two other interventions in December – one where we were supporting NHS Greater Glasgow and Clyde to improve its own FOI performance, and another established to resolve FOI challenges arising from a cyber-incident at Comhairle nan Eilean Siar.
Find out more about all of our live interventions at www.foi.scot/interventions-activity |
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Launch of new online briefings series – Care 4 FOI? The Campaign for Freedom of Information in Scotland are running an event series in February, where attendees will be briefed on the FOI Reform Bill and the Scottish Government’s consultation on extending FOI to the care sector.
These will be hour long sessions on the 4th and 12th, taking place online. For more information and details on how to book your space for each session, visit: www.cfois.scot
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Will information a public authority has always be “held” by that authority? Under FOI law, authorities must provide the information they hold at the time a request is received. However, Scotland’s FOI Act also states that, if an authority holds the information on behalf of another person, then the information is not held by that authority for the purposes of FOI.
In Decision 258/2025, a requester asked the Scottish Government for correspondence relating to the drafting of a Member’s Bill – the Terminally Ill Adults (Scotland) Bill. The Scottish Government said that it did not hold this information for the purposes of FOI as it was held on behalf of the Scottish Parliamentary Corporate Body (SPCB).
We considered a several factors in determining whether the authority held the information on its own behalf or on behalf of another person, including: - the existence of a formal agreement between the authority and the SPCB, which placed full ownership and control of the drafting process with the Scottish Parliament, rather than with the authority
- the fact that a Member’s Bill is a Bill introduced by an MSP who is not a member of the Scottish Government.
We found that the authority did not hold the information for its own purposes and instead held the information on behalf of the SPCB. Where information is held by another authority, the requester can make a new request for information to that authority. |
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Arguments of ‘commercial prejudice’ must be specific and evidenced The FOI Act allows information to be withheld where disclosure would, or would be likely to, substantially prejudice (harm) the commercial interests of any person (including a public authority).
In Decision 244/2025, a requester asked for details of funding received from Chinese organisations. The authority withheld this information on the basis that disclosure would harm its own commercial interests.
We found that the authority’s submissions lacked detail and did not draw a direct link between the withheld information and the harm that would result from disclosure.
We noted that it was for the authority to provide evidence of harm, not for us to make the case on its behalf. As it had not provided this, we ordered disclosure of the information. |
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The wording of an information request FOI law provides a general right to information held by authorities. Of course, information can only be provided if it is held in the first place – and whether information is held can depend on the wording of the request.
In Decision 273/2025, a requester asked for information relating to a decision taken to allow a community council to “pass into abeyance” (i.e. to be temporarily inactive) rather than be dissolved. The authority said it did not hold any information as it did not take any decision on the status of the community council.
Given the wording of the request, we accepted that information would only be held by the authority if it had taken a decision on the status of the community council. We were satisfied that the authority had not taken such a decision – meaning that it held no information which would answer the request.
While it is good practice for requests to be as specific as possible, requesters should take care to ensure that they do not inadvertently make them too specific, excluding information that they may want. |
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4 February 2026 – Care 4 FoI? With UNISON Free hour-long online meeting on Wednesday 4 February at 11:30am, briefing attendees on the FOI Reform Bill and the consultation on extending FOI to the care sector. Remember to book your space to the UNISON session here! |
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12 February 2026 – Care 4 FoI? With The Jimmy Reid Foundation Another meeting providing an update on the FOI Reform Bill and the consultation on extending FOI to the care sector. This meeting is scheduled for 5pm – 6pm online, with tickets available to book for the Jimmy Reid Foundation session now. |
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19 February 2026 – FOI Fest 2026 New conference aimed at anyone with an interest in FOI rights, taking place in-person (in London) and online. Find out more about FOI Fest 2026. |
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4 March 2026 - eCase FOI 26 Conference Free conference for staff working in FOI, taking place in central Edinburgh. For more information visit the eCase FOI 26 Conference website. |
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6 February 2026 – Closure of collection of FOI Statistics for Quarter 3 Deadline for submission of public authority statistics for Quarter 3 2025-26. Statistics can be submitted using our FOI statistics portal. |
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5 April 2025 – Collection of FOI statistics for Quarter 4 2025-26 The window opens for the submission of public authority FOI statistics for the period between 1 January and 31 March 2026. |
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