Open Update: FOI news from the Scottish Information Commissioner

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Scottish Information Commissioner
Open Update

FOI news from the Scottish Information Commissioner

22 March 2024

eCase Awards

Awards conference shines light on FOI good practice 

So what does good practice in FOI look like? This key question was at the heart of the 2024 eCase FOI Awards Conference, which took place in Manchester earlier this month. 

The eCase FOI Awards celebrate good FOI practice across four categories: Practitioner of the Year; Team of the Year; Initiative of the Year and Rising Star. 

The answer that emerged from this year’s nominees and award-winners was that good practice can take many forms. The event highlighted a diverse range of work that was underway across the UK to develop, sustain or improve FOI performance. Many nominees also described out how improvements had been achieved against a backdrop of rising request volumes. 

Improvement work highlighted through the awards included:

  • Reviewing and revising procedures - organisations were working to improve performance at all stages of the request-handling process; from committing to log all requests and seek relevant clarification within 24 hours of receipt (Leicester City Council) to introducing new procedures to escalate cases internally where they are a risk of a late response (University of Edinburgh).
  • Customer-focussed FOI – a number of organisations shared the benefits of putting the requester-experience at the heart of their FOI-responses; reassessing how they communicate with requesters and how they explain their decisions. Nominees (e.g. the National Audit Office) noted the positive impact of this work in terms of better stakeholder relations and fewer reviews and appeals. 
  • Being ‘proactive’ about proactive publication - examples included the development of user-friendly platforms to enable users to ‘self-service’ when accessing information; responsively publishing information on emerging FOI ‘hot topics’; and proactively publishing information about their own FOI compliance and performance.
  • Senior management reporting – several organisations reflected on the benefits of effective internal reporting, with clear and concise regular reporting helping to strengthen senior management understanding and commitment, and support organisational change. 
  • Training and networking – nominations also highlighted a range of innovative approaches to training, networking and information-sharing. This included the development of bite-sized, pre-recorded training modules; targeted training focussed on individual staff needs; and the establishment of sectoral networking groups to share learning and experience between organisations. 

The full list of award-winners will be published by eCase shortly.

We were, of course, pleased to see three nominees from Scottish organisations recognised through the awards.

James Nock from HEFESTIS was highly-commended in the Practitioner of the Year category, for his work on the development and delivery of an FOI shared-service resource for the university and college sector.

The University of Edinburgh, meanwhile, picked up two awards, with Ann-Marie Noble winning the Practitioner of the Year award, while recent FOI improvement work by the University was highly-commended in the Initiative of the Year category. 

Ann-Marie recently spoke about her FOI improvement journey at a workshop at December’s Holyrood FOI Conference, alongside staff from the Scottish Government and Falkirk Council who shared their own improvement stories. Read more on our website about the effective improvement work introduced by these organisations.

March’s eCase Awards conference also featured a wide range of other learning, including keynote presentations from Scottish Information Commissioner David Hamilton and the ICO’s Director of FOI and Transparency, Warren Seddon. Our staff also took part in workshops and panel discussions on vexatious requests, the ‘effective conduct of public affairs’ exemption and responding to requests for environmental information. 

Recordings from each of the FOI Awards conference sessions will be made available over the coming days at

FOI News


New intervention examines approach to informal communications 

In February the Commissioner launched a new intervention to examine the Scottish Ministers’ practice in relation to the use and retention of informal communications using tools such as WhatsApp. The intervention was launched in response to the evidence emerging from the UK Covid-19 Inquiry as it examined pandemic-related decision-making in Scotland. The Commissioner’s findings from his intervention will be published in due course. 

As we have previously set out, where informal communication tools are used by public bodies to carry out official business, this information will typically fall under the scope of Scotland’s FOI laws. 

December’s Holyrood FOI Conference, however, revealed significant concerns about organisational awareness of this issue, with only 26% of conference delegates agreeing that there was good understanding of this principle within public authorities. 

It is essential, therefore, that every public authority takes steps to ensure that this is fully understood by staff, and that internal procedures enable relevant information to be identified, retrieved and considered in response to FOI requests. 

The Commissioner’s statement on this issue is published here.

David Hamilton - Parliament 2024

Commissioner gives evidence to the Scottish Parliament

Commissioner David Hamilton recently gave evidence to the Scottish Parliament’s Standards, Procedures and Public Appointments Committee, reflecting on the current FOI landscape, updating committee members on the plans to resolve the historic backlog of FOI appeals, and sharing his views on the need to reform elements of Scotland’s FOI law. 

Read the Official Report, or watch the recording of the evidence session here.

Scottish Government publishes report on use of section 5 powers

Scotland’s FOI Act requires that the Scottish Ministers report to Parliament every two years on the use of their powers to designate new bodies under section 5 of the FOI Act. The Scottish Ministers 2023 Report, which was laid before the Parliament in October, confirmed that no orders had been made under section 5 during the two-year reporting period. 

The Report sets out that the Scottish Government plans to bring forward proposals for the future use of this power. It also notes that both ScotRail Trains and Caledonian Sleeper were brought within the scope of FOI during the reporting period (through becoming wholly-owned by a public body).

FOI conference examines current issues and next steps for FOI

An online, half-day conference on 28 May will explore current issues and future developments for FOI in Scotland. The conference, which is organised by MacKay Hannah, features speakers including Scottish Information Commissioner David Hamilton, Katy Clark MSP, the Campaign for FOI in Scotland’s Carole Ewart, and Scottish Public Services Ombudsman Rosemary Agnew. 

Visit the conference website for more information.

Commissioner prepares to launch FOI appeal webinars

To support our new approach to resolving FOI appeals, the Commissioner will shortly be launching a programme of webinars which will set out the requirements of the new approach to staff within Scottish public authorities, while also providing opportunities for questions and discussion regarding the approach. Stay tuned for more information: further details on the first of these webinars and an opportunity to register to participate will be provided in our next newsletter... 

Quarter 3 FOI statistics now available

Public authority FOI performance data covering the period between 1 October 2023 and 31 December 2023 have now been published on our website. Visit our FOI Statistics Portal to find out more. 

During 2024 we’ll be exploring ways in which we can make the data collected through our statistics portal more accessible to anyone with an interest in public authority FOI performance data. More details will follow soon.

Decisions and Learning

Appeal resolution: a route to a faster outcome

Resolution is an integral part of the Commissioner’s appeal investigations, though often overlooked. Section 49 of FOI Act enables the Commissioner to settle cases that have been appealed to him, where appropriate. 

Informal resolution will often provide positive outcomes for requesters. It can aid the disclosure of information more quickly than awaiting a formal decision on the case. It can, in some cases, identify a more appropriate route to receive the information; or it can simply just support a clearer understanding of a request outcome, e.g. through explaining more fully why information is not held. In some cases, cases may even be resolved through the provision of advice on revising a request to ensure it is more likely to result in disclosure: an outcome that can be helpful to both parties. 

Recently, cases have been resolved by: 

  • Correspondence with an authority resulting in further information being provided. 
  • Explaining to a requester that we could not comment on the accuracy of the information supplied, but they could submit a further request for other information. 
  • Advising a requester that, in the specific circumstances of the case, the Commissioner was highly likely to uphold the public authority’s response. 

Where we think the resolution of an appeal may be appropriate, we will explore this carefully with both parties, seeking to find a solution which ensures the most effective outcome for all involved.

The Commissioner must consider circumstances at the time of a request

When the Commissioner considers appeals, he is required to consider the circumstances at the time the information request (or the request for review) was made. In Decision 113/2023, we examined a case where an authority had withheld information under the EIR exception relating to the confidentiality of commercial information.

Generally, the protection of information under this exception should be limited to the minimum time necessary to safeguard the commercial interest in question.

While the passage of time will be relevant when in considering whether the exception was appropriately applied, the Commissioner can only consider the impact of the passage of time up to the point where the request (or review request) was made.

In this case, the initial request was made on July 2021, and the review outcome was in October 2021. The Commissioner could not, therefore, consider the passage of time between the authority’s review and the issuing of his decision. In the circumstances, we found that the authority had correctly applied the exception in question.

Making the case that harm will apply

Section 30(c) of Scotland’s FOI Act allows public bodies to withhold information where disclosure would (or would be likely to) substantially harm the effective conduct of public affairs. When applying this exemption, authorities must show what specific harm would be likely to be caused by disclosure of the information, and how that harm would be expected to follow from disclosure. Where this cannot be clearly demonstrated, the exemption is unlikely to apply.

In Decision 112/2023 a requester sought information on total fee payments and the dates of payments made in relation to Lochaber Smelter. Following consideration of the detail of the case, the Commissioner accepted that disclosure of the total fee paid would (or would be likely to) substantially harm the effective conduct of public affairs.

However, the Commissioner was not satisfied that disclosure of the dates of those payments – without knowing the actual value of the fee payments – would result in the harm claimed by the authority.

The Commissioner therefore ordered that information relating to the dates of payments be disclosed.

Coming Up...

8 April 2024 – Submissions open for Quarter 4 FOI Statistics

The Commissioner’s FOI Statistics Portal opens for the submission of public authority FOI statistics covering the period between 1 January and 31 March 2024.

3 May 2024 – Deadline for Quarter 4 statistics submission

Final deadline for the submission of public authority FOI statistics covering the period between 1 January and 31 March 2024.

28 May 2024 – FOI Conference: What’s happening now and next?

MacKay Hannah online, half-day conference exploring current developments and next steps for FOI in Scotland.

August 2024 – Centre for FOI Practitioners’ Conference

Annual Practitioners’ Conference, held in Dundee. Further information on date and timings to be confirmed shortly.

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