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 AI: New challenge, new guidance, new approach The impact of AI-assisted and AI-generated FOI requests has been a hot topic in FOI recently, with many public bodies reporting increases in challenging requests which, in some cases, appear to be largely AI-generated.
This issue is also affecting the Commissioner directly, with our own appeal volumes rising by 83% over the last year. This included a two-month period where we received 120 appeals from just two people - with evidence that those appeals were entirely generated through AI.
AI can be a valuable tool, helping people make FOI requests which are both more clearly-worded and more tightly-focussed, supporting better communications and the faster disclosure of information. However, AI can also cause real problems, with the unchecked use of AI-tools often leading to requests which are overly-complicated, confusing, or very wide-ranging, creating unnecessary problems for public bodies and increasing the risk of delays or refusals for requesters.
New guidance
To help navigate these challenges, we’ve published new guidance to help people get the most out of AI when making requests, while avoiding pitfalls that can sometimes arise. We strongly recommend that anyone using AI to support their FOI-use refers to our guidance for advice, hints, and tips. The guidance should also be useful to public bodies, enabling them to direct requesters to our advice for future reference when challenging AI-generated requests are received.
Read our FOI and AI guidance for requesters here.
New approach
Alongside this new guidance, we have also introduced a new policy which enables us, in certain circumstances, to restrict the number of appeals under live investigation from a single requester to five. While this policy has not yet been used, it enables the Commissioner to take steps to protect other people’s right of appeal from being negatively impacted by a substantial surge of appeals from a single requester (which may be further complicated by the use of AI). The measure is intended to be used only in circumstances where a pattern of appeal submissions is likely to harm the functioning of Scotland’s FOI regime as a whole.
Read more about the new policy here.
Next steps
We are also working on several other upcoming developments in this important area. We are developing AI guidance specific to public bodies, while we will shortly launch a new survey for FOI staff, gathering information on, among other things, the impact of AI on FOI request handling. We’ll also be exploring AI-associated issues at a European level, with Commissioner David Hamilton leading on a Europe-wide project to explore how AI is impacting on FOI regulators and public bodies across the continent. Updates on all this work will be provided soon, so stay tuned for further information! |
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eCase Award winners reveal routes to better FOI What are some of the key steps that can help public bodies sustain and improve their FOI performance?
We’re pleased to report that some important answers to this question are available from the Scottish winners of the 2026 eCase FOI Awards.
The Awards, which were held in Edinburgh in March, saw staff from two Scottish public bodies take home prizes. Hannah MacKay of Crown Estate Scotland won in the Rising Star category, while the Scottish Ambulance Service Board was highly commended as a Performer of the Year.
But what’s the secret to their success? We asked our award winners to share the key hints and tips that helped drive their FOI improvement.
From taking a ‘whole organisation’ approach to improved monitoring and reporting; from working ahead of FOI deadlines to embedding proactive publication as part of the ‘day job’; they passed a whole host of tips and strategies on to us. And we’re very pleased to now pass them on to you…click below to find out more!
Tips from the 2026 eCase Award-winners. |
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Submission deadlines during our investigations Scottish public bodies should note that the Commissioner is no longer providing extensions to his submission deadlines during an investigation, except in exceptional circumstances.
Once an appeal is under live investigation it’s in the interests of all concerned that we progress it quickly. This means setting strict - but reasonable - timescales for supplying withheld information and supporting submissions.
The Commissioner expects authorities to be adequately resourced to deal with key FOI tasks - including engaging with our team during an investigation - with resilience to cover routine situations like staff holidays.
The good news is that, if an authority has undertaken a robust and fully-documented review, it should be easy to meet our timescales.
Our Investigations Handbook gives an indication of the submissions and timeframes we expect during an investigation. |
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New statistical data collection to be collected during 2026-27 Most readers will know that the Commissioner collects FOI performance data from public bodies, publishing this on our website for information, analysis and review.
During 2026-27, however, we will ask public bodies to start collecting and provide two new sets of data - supporting even greater openness and transparency in their FOI function.
Firstly, we’ll be asking that public bodies provide, as part of their ongoing quarterly submissions, details of the number of requests for clarification they have made during each quarter (we currently ask only for the number of requests closed where clarification is not received).
Data around clarification has been specifically sought by the Scottish Parliament, so this information will enable us to respond accurately to future requests.
All public authorities will soon receive correspondence providing details of this new requirement. We’re keen to capture this information from 1 September onwards, so now is a great time for public authorities to ensure they are recording how many requests require clarification under section 1(3) of the FOI Act.
The next submission window for statistics will open on 6 July and close on 7 August, covering the period between 1 April and 30 June. If a public authority has the data for this period, it should submit it alongside the standard submission. If this data isn’t currently collected, authorities should start to gather it to report it alongside their standard submission for Quarter 2, covering 1 July to 30 September.
Secondly, we’ll also ask public bodies to provide us with an annual submission detailing examples of the types of information they have added to their Guide to Information over the course of each year. In doing so, we’re not asking for a line-by-line list, just a flavour of the range and types of information that organisations are publishing which they weren’t before - in compliance with the FOI Act’s publication duty and the duty to ‘actively disseminate’ environmental information under the EIRs. Examples of the information supplied will be provided to the Scottish Parliament as part our reporting duty.
We’ll request our first annual ‘publication’ submission alongside Quarter 4 data in April 2027. So, if public bodies don’t currently collect data on newly-published information, please start doing so now, to ensure that their Quarter 4 report is fully representative of all the good work being done in this important area. |
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Missed FOI deadline leads to landmark court ruling The Court of Session has ruled that Scottish Ministers acted in contempt for missing a compliance deadline set by the Commissioner in Decision 281/2025. The case concerned information linked to the James Hamilton Report, which the Commissioner ordered be disclosed by 15 January 2026.
After the deadline and a final warning were not complied with, the matter was referred to court - the first such referral in over 20 years of FOI.
The Commissioner emphasised that delayed or refused compliance undermines FOI rights, stating: “if Scotland’s FOI rights are to remain robust, effective and valued, the timescales for both the provision of information and compliance with my rulings must be respected by every public authority.”
Our website provides a clear, up to date overview of the ongoing court appeals and the wider context behind them. |
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Getting ready for the holidays… You may have noticed an increased focus on the importance of complying with FOI deadlines in recent newsletters - this is reflecting a wider rise in demand on all Scottish FOI services.
Scottish FOI requests have now exceeded 111,000, with a corresponding increase in applications to the Commissioner (1,084 this year compared to 593 last year).
As noted above, we’re taking a more structured approach to timescales to help manage this.
With summer approaching, we would also encourage authorities to plan ahead and ensure sufficient cover during holiday periods. We know this can be a challenging time, but early preparation helps.
If you’d like support or guidance to improve your processes, please don’t hesitate to get in touch – we’re here to help. |
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FOI should be recognised as a statutory corporate function Both the FOI Act and the EIRs require authorities to respond to information requests and requests for review within 20 working days. This can be challenging when authorities are short-staffed or receive a marked increase in requests, but complying with FOI law is a statutory duty. In decisions 066/2026 and 086/2026 the Commissioner reminded two different authorities that under the Section 60 Code FOI should be recognised as a specific statutory corporate function within an authority. It should therefore receive appropriate organisational support at both strategic and operational levels, to ensure compliance with the legislation. |
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Reviews must comply with the requirements of FOI law Under FOI and the EIRs requesters can ask authorities to review their response if they are dissatisfied with the original response, or if the authority has failed to respond within 20 working days. When carrying out a review, authorities must ensure that they comply with the legislation.
In Decision 046/2026 an authority issued a review under the EIRs, but that review was essentially a holding response. Instead of responding, it simply informed the requester that it had not completed its searches, and that it would respond once these were carried out. It was then several months before searches were completed.
The Commissioner did not accept that the review outcome complied with the requirements of the EIRs.
Likewise, in Decision 085/2026, an authority responded to a request for review under FOI by agreeing that it had failed to respond to the original request on time, but it did not reach a decision on, or respond to, the original request. The Commissioner did not accept that the authority had carried out a valid review and required it to do it again. |
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Are ‘meta requests’ vexatious? A ‘meta request’ is one where a requester asks an authority for information relating to its handling of a previous request.
In Decision 082/2026 an authority refused to comply with a meta request, arguing that the requester was seeking information solely about its handling of a previous request, and that it was therefore “in a loop” of answering requests about its handling of this issue. It argued that the request was vexatious, and that, if the requester continued to make meta requests, the significant burden placed on the authority (by these requests) would be increased.
The Commissioner was not persuaded by the authority’s arguments. He referred to guidance from the UK Information Commissioner’s Office that advises that meta requests should be dealt with the same way as any other request. He also noted that the prospect of future requests being submitted cannot be an appropriate or relevant factor in determining whether a current request is vexatious. |
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Requests for environmental information MUST be responded to under the EIRs Under Scotland’s FOI laws, requests for environmental information must be responded to under the EIRs. While the EIRs are similar to the FOI Act they also contain important differences, so it’s essential they are used when responding to environmental information requests.
In three recent Decisions - 105/2026, 121/2026 and 125/2026 - we found that authorities had used the wrong legislation when handling requests for information. This included requests for information about the safety of a playground, and access to, or the proposed closure of, a harbour.
It’s important to remember that the definition of environmental information in the EIRs is broad (and should also be interpreted widely). Public bodies should therefore always consider whether information may be environmental before responding to requests.
Failing to do so can cause more work for authorities and unnecessary delays for requesters. In these current cases, for example, two of our Decisions required the authority to reconsider the requests again under the EIRs – a situation which could easily been avoided through a correct approach initially. |
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Fees Notices must be issued on time… While most FOI requests are responded to free of charge, the FOI Act does allow public authorities to charge a fee for access to information in some circumstances. When doing so, authorities must ensure that they comply with the FOI Act’s Fees Regulations.
The Fees Regulations set out, among other things, that any fees notice must be issued within 20 working days of receipt of the original request.
In Decision 122/2026, an authority issued a fees notice as part of its FOI review. This fell outside the timescale allowed by the Regulations. We therefore found that the authority was not entitled to issue a fees notice in these circumstances. |
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…and any fee charged must be demonstrably ‘reasonable’ The EIRs also allows charges to be made for requests for environmental information, setting out that any fee charged must be ‘reasonable’.
In Decision 126/2026, a requester had challenged whether an EIR fees notice was reasonable. In considering this case we found that, in the absence of evidence by the authority to support its assessment of both the time required and the number of documents to be reviewed, we could not accept that the fees notice was reasonable.
It’s important, therefore, for authorities to ensure that they can adequately evidence the basis for any fee calculations, demonstrating that any charges made are reasonable in the circumstances. With regard to environmental information requests, authorities should also consider the impact of any fee on the general right to access environmental information - including whether the amount charged is likely to dissuade requesters from asking for environmental information - when considering whether a fee is ‘reasonable’. |
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Interventions and Improvement |
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NHS Forth Valley turns performance around NHS Forth Valley has made significant progress after delays in responding to FOI requests and reviews led to a Level 3 intervention by the Commissioner.
At the outset of our intervention, fewer than 30% of requests and 20% of reviews were answered on time. Through strong collaboration with the Commissioner’s office and sustained effort from the FOI team, performance has improved dramatically. Latest figures show 94% of requests and 100% of reviews are now handled within statutory timescales. As a result, the intervention has now been closed - a fantastic achievement!
We now have a dedicated interventions team supporting a wide range of authorities and an increasing number of interventions. A full list is available on our website. We will also continue to share key learning from our interventions, so be sure to sign up to our newsletter and follow us on social media (links can be found below). |
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6 July - Collection of FOI statistics for Quarter 1 2026-27 The window opens for the submission of public authority FOI statistics for the period between 1 April and 30 June 2026. |
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5 October – Commencement of standard reporting of ‘clarification’ data The first standard quarterly submission of data relating to the number of times a clarification request has been made will be collected from 5 October 2026. |
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5 April 2027 – First call for annual ‘proactive publication’ data From April 2027 we’ll be asking public bodies to provide us with an annual statement in new information added to their ‘Guide to Information’ across 2026-27. We’d strongly recommend that organisations start collecting this data now! |
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