FOI news from the Scottish Information Commissioner
26 September 2024
Harnessing the benefits of an international outlook
David Hamilton
Scottish Information Commissioner
On Saturday 28 September FOI campaigners, practitioners and supporters around the world will celebrate International Right to Know Day - a day established to celebrate the role that FOI plays in supporting transparency, engagement and accountability across the globe.
This important day also presents a timely opportunity for me to share my own reflections on Scotland’s place in the international FOI community.
One of my Strategic Objectives for the next four years is to “contribute to Scotland’s reputation as a leader in openness and transparency and to promote Scotland as a model for transparency and openness in public functions.”
It is therefore important that I engage with other Information Commissioners across the world as we seek solutions to common problems and challenges by sharing experiences and ideas.
In June 2024, I attended the International Conference of Information Commissioners (ICIC), held in Albania. 80 other Commissioners from around the globe were represented and we discussed a range of topics. It was fascinating hearing how South African political parties are subject to FOI requests (can you imagine!), as are the top 100 companies listed on the Johannesburg Stock Exchange. It was also troubling to hear how Indian Information Commissioner vacancies were not being filled and how the Canadian Federal Commissioner’s budget had been dramatically cut.
As ever though, it was the sidebar conversations that were most helpful. Friendships and connections were made and since then my team have continued bilateral communications with Ghana, Bermuda, Canada, Mexico and Ukraine.
I’ve also picked up the links with Ireland, where legislation is similar, but different (for example, you can request information under both FOI and EIR together). From these discussions we can inform our own thinking, on issues such as the impracticalities of the so-called ‘gateway clause’ approach to FOI extension.
My next collaboration is a venture with Ukraine exploring information rights under martial law. This is learning and policy development at the sharp end, and I look forward to participating and sharing the outcomes. My Ukrainian colleague, Alex Bezverkhnia, also shares her own reflections on some key differences between Ukrainian and Scottish FOI below.
On this International Right to Know Day, I hope that all who work in information rights appreciate the breadth of the global community of practitioners that exist, and the vital role that we all have in supporting and enabling transparency and good governance.
David Hamilton
Scottish Information Commissioner
FOI News
FOI in Scotland and Ukraine - a personal reflection
To celebrate International Right to Know Day 2025, our Ukrainian colleague, Alex Bezverkhnia, has shared some thoughts on the key similarities and differences between the FOI regimes of Scotland and her home country.
Nominations for the 2025 eCase FOI Awards are now open, with the winners to be announced at a free conference in March 2025. The awards are looking for nominations across four categories:
Practitioner of the Year
Team of the Year
Initiative of the Year
Rising Star
We'd strongly encourage all FOI staff who have something to celebrate to consider nominating themselves, a colleague or an aspect of their work for the awards - it's a great way to recognise and celebrate the good work being done by FOI practitioners, while also helping to raise the profile of FOI within organisations and build support.
As in previous years, the eCase FOI Award winners will be announced at a full-day conference celebrating FOI best practice, which is free to public sector FOI and EIR practitioners.
This year's conference will take place in central London on Wednesday 5 March 2025. Interested in attending? You can register on the FOI Award conference website.
Decisions and Learning
At what point might confidentiality be lost?
Scotland's FOI Act allows public authorities to withhold information where it is subject to legal privilege. This might include, for example, legal advice correspondence between a lawyer and client, or documents created when considering possible legal action.
For information to be subject to legal privilege, it must be confidential. In Decision 152/2024, we considered whether legal advice which had been discussed during a Parliamentary Committee retained its 'confidentiality'. In this case we found that, while the information in the public domain made reference to the nature of the legal advice, this did not amount to the disclosure of the advice itself, nor did it constitute a comprehensive summary of that advice. We therefore found that the confidentiality of the advice had not been lost.
The advice in question had also been shared with another Parliamentary Committee. Here, we found that this had taken place in a confidential capacity, and for a very specific and limited purpose. We again found that, in these circumstances, confidentiality had not been lost.
The importance of getting FOI 'right first time'
We recently ran a series of online webinars for public authorities, providing advice and guidance to help them get their responses to our appeal communications 'right first time'. This included advice on ensuring searches for information are adequate, the importance of keeping a record of searches, and the need to retain information covered by a request in case the request is appealed.
Decision 189/2024 considers the poor practice shown by one local council in relation to various aspects of its FOI function. This case was particularly concerning as it marks the third decision notice that we have issued in relation to one request that had been made. Key concerns raised in our current decision include issues related to the quality of record-keeping, the quality of searches and a lack of guidance provided to staff involved in responding.
Given that these concerns had been highlighted in an earlier Decision (139/2022) it was concerning to see them arise again. We have since launched an intervention to support improvements in the council's FOI practice.
Assessing the risk of individuals being identified
In many of the cases we look at, it is reasonably easy to determine whether the requested information would identify someone. If the information includes a name, address, or an opinion that can be directly linked to an individual, this assessment is often clear. In other cases, however, it can be a little more challenging...
In Decision 181/2024 a request was made for police reports relating to specific football matches. The issue of whether the information contained within these reports might lead to the indirect identification of individuals involved in criminal - or potentially criminal - offences was not so clear cut.
For the FOI exemption to apply, we must be satisfied that disclosure would lead to a realistic prospect of someone being identified. In considering this, we took account of any information likely to be in the hands of a third party, while also being mindful of the need for there to be a realistic causal chain between that information, the withheld information and the ability to identify an individual. Where the risk of identification was insignificant, the information would not be personal data.
Ultimately, in this case, we were satisfied that, even in the absence of a direct identifier, the availability of a crime reference number and the fact that some incidents had been reported in the media contributed to a realistic causal chain of identification. We therefore found that the exemption applied to some of the withheld information. For other information, however, we did not accept a causal chain existed, so required that information to be disclosed.
7 October 2024 - submissions open for Quarter 2 FOI statistics Our statistics portal opens for the submission of Quarter 2 public authority data. We will issue the usual advisory email to public authority contacts. Visit the FOI Statistics Portal.
13 December 2024 - Campaign for FOI anniversary event
Provisional date for an event to celebrate both the 40th anniversary of the Campaign for FOI in Scotland and the 20th anniversary of Scotland's FOI law. Further details to follow...
1 January 2025 - 20th anniversary of Scottish FOI Rights
1 January 2025 will mark the 20th anniversary of the implementation of Scotland's FOI law. The Commissioner will be planning some events and activities across 2025 to celebrate this key milestone. Watch this space!
