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 warns of risk to FOI enforcement following 83% rise in appeals Scottish Information Commissioner David Hamilton has warned of the challenges facing his FOI enforcement function following a year in which the appeals to his office almost doubled - from 593 last year to 1,084 in 2025-26. At the same time, the requests received by public bodies in Scotland grew by 13%, with 111,241 requests reported – the highest ever recorded.
Speaking at the launch of his 2025-26 Annual Report, the Commissioner highlighted the impact of this rise on the performance of his office, warning:
“This has been another strong year for Scotland’s FOI regime, with increasing demand for FOI services across the board. However, an unprecedented 83% rise in appeals to my office is putting an unsustainable strain on my small team. Without additional, modest, investment, I will be unable to provide adequate regulatory oversight.”
The Commissioner went on to highlight the contribution that AI-supported appeals have played in this increase. His full press statement is available here.
Our 2025-26 Annual Report also finds that, despite these challenges, Scotland’s FOI regime is generally responding well, highlighting that: - 97% of the FOI requests made across Scotland received a response
- 85% of FOI requests resulted in some or all information being provided (if it was held)
- Only 1% of FOI requests were appealed to the Commissioner
- The Commissioner closed 14% more cases than last year
- 77% of the Commissioner’s decisions found wholly or partially in the requester’s favour.
Click below to read our Annual Report for 2025-26. |
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Artificial Intelligence and FOI: Join the discussion(s)… There are two events in October which will explore the impact of AI on FOI.
First up is an eCase webinar for public authority staff across the UK, which will take place at lunchtime on Thursday 1 October. The free webinar, FOI vs AI, will explore the challenges that AI presents for FOI request handling and seek to identify practical solutions. You can register to take part on the eCase website.
Just a few days later, on Monday 5 October, the Scottish Public Information Forum (SPIF), will examine and explore the impact of AI on Scotland’s FOI regime. Hosted by the Campaign for FOI in Scotland and open to anyone, the event will feature contributions from Birkbeck University’s Dr Ben Worthy and Scottish Information Commissioner David Hamilton.
Participants can attend either in-person at the Scottish Parliament or online, with the forum taking place between 2pm and 4pm.
Visit the Campaign for FOI in Scotland’s website to book your place at this free event. |
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Collection of public authority FOI statistics Public authority FOI staff will be aware that the Commissioner is asking organisations to provide two new sets of data over the coming months as part of their FOI statistical returns: a quarterly submission on the number of clarification requests made under section 1(3) of the FOI Act, and an annual submission providing examples of the types of information which has been proactively published under their Guide to Information over the year.
Clarification requests
In relation to clarification requests, the first submission will be requested alongside the upcoming Quarter 2 submission, which covers 1 July to 30 September.
Public bodies should be aware that, in making this submission, we are seeking data on clarification requests made under section 1(3) of the FOI Act. This will, therefore, apply specifically to those requests where an authority “requires further information in order to identify and locate the requested information”.
Proactively published information
We are also asking public bodies to provide an annual submission with examples of the types of information which has been added to their Guide to Information over the year. Public bodies should note that, in seeking this, we are not asking for a full, line-by-line list of published information. Our aim is to provide a platform for authorities to showcase examples of the types of information they are now publishing which they weren’t before.
In doing so, we aim to create a route through which good practice and innovations in proactive publication can be highlighted, shared and celebrated, supporting other public bodies to learn from the work that is being done elsewhere. Public bodies are, therefore, free to use their own discretion in deciding which examples to share in their annual submissions.
Our first annual submission in relation to proactively published information will be requested in April 2027, covering examples of information published across 2026-27.
Anyone with a question about our new statistical requirement can contact us at stats@foi.scot. |
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Digital Democracy Summit comes to Edinburgh in 2027 On 11-12 March 2027 TICTeC’s Digital Democracy Summit is taking place in Edinburgh. The event, which is a collaboration between mySociety, the Scottish Government, the University of Edinburgh Futures Institute and the AI for Collective Intelligence Hub, will draw on international best practice to explore how digital tools and technologies can help make democratic systems more effective, inclusive and participatory.
Registration details and an open call for proposals will be issued in the coming weeks. In the meantime, you can register for updates here. |
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When is a late response a review outcome? Under FOI law, people who request information can ask a public authority to ‘review’ its handling of the request if they’re unhappy with a response.
It’s important to remember that the response a public authority issues after receiving a FOI request for review will be its review outcome – even if it didn’t issue an initial response.
In Decision 215/2026, an authority responded to a request for review by issuing the late response it had been preparing. This resulted in a further request for review being made, and a second review outcome being issued.
We found that the authority had failed to recognise that it had already provided a review outcome (which it wrongly termed a late response) and, in doing so, had failed to notify the requester of their right to appeal to the Commissioner.
If a requester challenges the outcome of a review, public authorities must advise them to raise their dissatisfaction in an appeal to the Commissioner – they shouldn’t carry out a second review. |
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When requesters seek their own personal data under FOI… If the information covered by an FOI request includes the requester’s own personal data, public authorities should treat that aspect of the request as a ‘Subject Access Request’, and deal with it under data protection law. However, it’s important that public bodies also remember their obligations under the FOI Act.
In Decision 220/2026, the authority identified 27 documents covered by an FOI request that contained the requester’s own personal data. It went on to process this information solely under data protection law. The authority took the view that, as the information was the requester’s own personal data, it fell outside the FOI Act.
However, even if they are responding to an FOI request for the requester’s own personal data under data protection law, authorities must remember that they also need to issue a refusal notice under FOI. This is particularly important when, as in this case, the personal data of the requester is entwined with other information, including the personal data of third parties. |
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…and don’t forget the EIRs either! In the above case, we also found that the authority failed to identify that some of the information requested was environmental – so should have been responded to under the Environmental Information (Scotland) Regulations.
A reminder that authorities should carefully consider all the information covered by a request before preparing their response. |
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Using AI to help make requests? Try and ensure you’re being as clear and accurate as possible In Decision 214/2026, the Commissioner found that an authority was correct to refuse to comply with 21 requests for information because they were vexatious.
The authority provided detailed submissions in which it noted that the format of the requests suggested that artificial intelligence (AI) tools had been used.
When reviewing the requester’s submissions, the Commissioner found that there were significant errors/ fabrications in their appeal. The requester was unable to explain how these errors occurred. The Commissioner would urge people to ensure that their FOI appeals are clear and accurate, particularly when AI is being used.
Where an appeal falls substantially short of an acceptable standard of care and accuracy, he may deem the application itself to be either frivolous or vexatious, and refuse to take the case forward.
The Commissioner’s new guidance on using AI has further advice to help requester’s get the most out of their FOI rights when using this new technology. |
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Interventions and Improvement |
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Learning from our recently closed interventions In our last newsletter, we promised that we’d share details of the work done by the Scottish Fire and Rescue Service (SFRS) to raise their on-time FOI performance to 99%, following an intervention by our team.
Well, we’re pleased to report that we can share learning from not only the SFRS intervention, but also from another recent intervention, which saw NHS Forth Valley achieve a similar level of performance, raising on-time performance from around 30% at the start of our intervention to 96% last quarter. Want to know how these improvements have been achieved?
Find out more in the new Learning Reports published on our website… |
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28 September 2026 – Access to Information Day Commissioner David Hamilton will mark Access to Information Day with his peers, exploring the role of FOI in countering misinformation at the 2026 International Conference of Information Commissioners. |
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1 October 2026 – eCase webinar: FOI vs AI Free webinar for public authority staff, taking place between 12 noon and 1pm. Register on the eCase website. |
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5 October 2026 – submissions open for Quarter 2 FOI stats The window opens for the submission of public authority FOI statistics covering the period between 1 July and 30 September 2026. Organisations should also provide details of the number of clarification requests made under section 1(3) of the FOI Act. |
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5 October 2026 – Scottish Public Information Forum Free meeting between 2pm and 4pm at the Scottish Parliament, exploring the impact of AI on Scotland’s FOI regime. Open to all, with attendance available in-person or online. Register at the Campaign for FOI in Scotland’s website. |
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17 November – Holyrood FOI Conference 2026 The 2026 Holyrood Conference will take place at Dynamic Earth in Edinburgh and feature speakers including Scottish Information Commissioner David Hamilton, Katy Clark MSP, and Minister for Parliamentary Business and Veterans Jamie Hepburn MSP. |
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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 sharing some of the new information added to their ‘Guide to Information’ across 2026-27. We recommend that organisations start collecting examples of relevant data now! |
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