Open Update: FOI news from the Scottish Information Commissioner |
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FOI news from the Scottish Information Commissioner |
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Information challenges and opportunities: lessons from around the world These are interesting times for those of us working in freedom of information (FOI), with a number of new issues, challenges and opportunities to be navigated and explored. From increasing numbers of requests and appeals to public sector reform; from the growing risks of mis- and disinformation to the rising impact of artificial intelligence (AI) on request-handling, we have some intriguing and thought-provoking issues to address.
We are not, however, alone in this. Attending last month’s International Conference of Information Commissioners (ICIC) in Freetown, Sierra Leone, it was clear that the issues faced by Scotland are global, with Commissioners around the world sharing similar stories – and, in many cases, sharing details of solutions that are being put in place.
Find out more in my 2026 ICIC Conference report below… |
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It’s time to nominate for the 2027 eCase FOI Awards! We know from our FOI statistics that Scottish public bodies are generally performing well on FOI…so why not take the opportunity to celebrate it?
The fifth annual eCase FOI Awards are now live, inviting nominations across four categories. These are: - Practitioner of the Year
- Team of the Year
- Performer of the Year - for FOI teams that demonstrate consistent, solid performance
- Rising Star - for new FOI staff who are making a positive impact
So, if you work in FOI, now is the time to reflect on who in your team is going the extra mile to promote and deliver FOI best practice; whose contributions deserve to be recognised and celebrated; how your team is performing; and how your FOI practice is being sustained, developed and improved.
We’d urge all authorities to consider making a nomination – it’s a fantastic way to celebrate the work that you do, while also helping to raise the profile of FOI across your organisation.
For more information visit the eCase FOI Awards website. Nominations close on 31 December 2026.
You can also read more about the experience of Scotland’s 2026 eCase Award winners here. |
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Holyrood Conference Have you secured your place at this year's Holyrood FOI Conference? With the event taking place on 17 November in Edinburgh, there's still time to book…but not for much longer!
The event brings together policymakers, regulators, practitioners, campaigners and journalists to discuss current challenges and future developments for FOI in Scotland.
The programme includes keynote speeches, panel discussions and interactive workshops, covering topics such as artificial intelligence (AI) and FOI, FOI fundamentals, lessons from interventions, and approaches to proactive publication. Delegates will also have opportunities to network, share experiences and discuss best practice.
This year's speakers include Katy Clark MSP, Commissioner David Hamilton, Jamie Hepburn MSP and Louise Crow, Chief Executive of mySociety, among others.
Whether you're new to FOI or an experienced practitioner, the conference offers a valuable opportunity to hear from experts, exchange ideas and keep up to date with the latest developments.
Find out more, and book your place on the Holyrood Conference website. |
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Further guidance on AI and FOI It’s not just the Holyrood Conference discussing artificial intelligence - AI and AI-generated FOI requests remain a hot topic across the sector. To support practitioners, we are continuing to develop relevant resources, including our guide for requesters. Public authorities will also find this a useful reference point when a requester makes AI-assisted requests which are especially broad or complex.
We're also developing guidance for public authorities on responding to AI-assisted requests. This will be published very soon, so keep an eye out for updates.
In the meantime, eCase recently hosted an online webinar where FOI practitioners shared practical experiences and good practice for managing AI-generated and high-volume requests. The UK Information Commissioner’s Office has also published guidance on AI, which we encourage FOI staff to read if they are looking for more advice. |
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Commissioner welcomes clarity offered by Court ruling Scotland’s Court of Session has issued a ruling which provides clarity for cases which relate to the handling of complaints made against former First Minister Alex Salmond.
The ruling, which finds against the Commissioner, makes clear that a previous ‘contempt of court’ case relating to this matter should be considered when handling related cases. The previous case had not featured in the public authority’s submissions to the Commissioner.
The ruling also recognises the independence of the Commissioner, affirming that the Commissioner must take an independent view on any appeal, and is not required to defer to the authority’s view on what FOI law requires. The court found that the authority’s ground of appeal on this point was not upheld.
The Commissioner welcomes the clarity provided by this ruling, alongside the Court’s recognition of the independence of his role. The relevant decisions – 279/2025 and 315/2025, have now been remitted back to the Commissioner for reconsideration in light of the Court’s ruling. |
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It’s not for the Commissioner to produce evidence of harm… Information can be withheld under FOI law if disclosing it would harm the commercial interests of any person, including a public authority. When making the case for withholding information for this (or any) reason, it’s important to make detailed and relevant arguments which relate to the withheld information.
In Decision 223/2026, we found that the authority failed to show that its concerns about disclosing particular information related to commercial activity. We ordered this information to be disclosed (apart from some personal data).
It’s important to remember that authorities are responsible for making detailed and relevant arguments for the harm they are claiming. It’s not for the Commissioner to go and find evidence, or make the case on behalf of the authority. |
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Public authorities should always consider whether information is environmental Scotland’s FOI laws mean requests for environmental information must be responded to under the Environmental Information (Scotland) Regulations 2004.
Four recent Decisions – 227/2026, 230/2026, 236/2026 and 244/2026 – found that some, or all, of the information requested was environmental - but the authorities had used the wrong law when handling requests relating to empty property, unauthorised encampments, common good property and training for councillors.
Remember, when considering a request, that the definition of environmental information in the EIRs is broad and should be interpreted widely. When responding to requests, public bodies should always ask whether information may be environmental. This helps avoid delays for requesters – and unnecessary work for themselves. |
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Remember that confirming information exists is not the same as disclosing it… Under FOI law, an authority can refuse to confirm or deny that it holds information in some circumstances. This might apply, for example, where revealing whether or not information is held would harm law enforcement or national security.
To make this argument successfully, the authority must show that if the information were held it would be subject to a relevant exemption, while also demonstrating that revealing whether the information was held would be against the public interest.
In Decision 222/2026 the Commissioner agreed that an exemption would apply to the information requested, if it were held. However, he found that the authority failed to meet the second part of the test because it focussed on the potential harm caused by the actual disclosure of any such information, instead of the public interest arguments around confirming whether the information was held.
When making a case for this provision to apply, authorities must focus on the relevant tests. When considering the public interest, these will differ from those relating to the disclosure of information. |
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Responding to a request? First check what information is held! When responding to an information request, it’s vital to first find out what relevant information is held.
The authority in Decision 236/2026 initially said it was withholding some information under an exemption – but it later changed its mind and said it didn’t hold the information.
We found the authority hadn’t interpreted part of the request correctly, and we couldn’t therefore be sure that it didn’t hold that information.
When responding to a request, it’s crucial that an authority first carefully considers the wording and scope of a request so it can figure out what information it holds. Only then can it consider if an exemption should be applied. |
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Interventions and Improvement |
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Interventions and monitoring: improving FOI for all Our interventions work continues to help public bodies improve how they respond to FOI requests. Two recently completed interventions show how targeted support, clear expectations and sustained commitment can transform performance.
Our wider monitoring also shows encouraging progress: failures to respond to initial requests have fallen by 43% since the second quarter of 2025/26, while the proportion of FOI reviews receiving no response has dropped from 9% to 6% over the last four quarters. For people seeking information, these are very welcome signs of more reliable responses.
We are sharing lessons from interventions through this newsletter and at a panel session at Holyrood 2026. In the coming weeks, we will also be substantially updating the interventions section of our website with more details on the lessons learned, helping public bodies improve their responses and supporting better access to information. |
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6 November – Closure of collection of FOI Statistics for Quarter 2 Public authorities should ensure all submissions of FOI statistics have been made by this date for the period of 1 July to 30 September 2026. |
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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 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 are asking public bodies to provide 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. More details were given in our September newsletter. |
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