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

May 2024

Research 2

New research finds strong public support for FOI key principles

New research into awareness of FOI among the Scottish public has found both strong awareness of FOI, along with strong public support for the FOI key principles of openness, transparency and accountability. 

The research, which surveyed 1,279 people in March 2024, found that: 

  • 88% of respondents had heard of the Scotland’s FOI Act
  • 97% felt it was important for the public to be able to access information held by public bodies
  • Only 6% of respondents felt that FOI was a waste of public money (the lowest proportion since this question was first asked in 2011). 

The research also found that the public attach significant value to the proactive publication of information by public bodies. For example: 

  • 93% agreed it was important for public bodies to publish as much information as possible about their work
  • 68% reported that finding information on a public body’s website was their preferred way to access information (only 12% of respondents said that sending a request would be their first preference)
  • 90% said they would be more likely to trust an organisation that publishes a lot of information about its work. 

The public also favoured the reform of FOI law in certain key areas. For example: 

  • 93% felt that FOI should be extended to cover publicly-funded health and social care services (such as care homes)
  • 89% felt that all organisations that provide public services under contract to a public body should fall within scope
  • 79% felt that it should be a criminal offence for public bodies or their officials to try to subvert FOI law.

FOI News

FOI Section 60 Code of Practice - what would you like to see?
Following its recent consultation on FOI in Scotland, the Scottish Government has committed to review and refresh key elements of the FOI Act's Section 60 Code of Practice, which provides guidance for public authorities on meeting their duties under FOI law. 

As part of this review, the Commissioner will be sharing his thoughts on the areas where this important guidance could be refreshed and updated. Are there any areas that you would like to see updated in this guidance? Whether it's greater clarity around a particular issue, more advice on an existing topic, or something new altogether, contact us to let us know!

FOI Private Member's Bill - next steps

Speaking at the Mackay Hannah FOI Conference on 28 May, Katy Clark MSP gave an update on her Private Member's Bill to reform FOI, confirming that the text of her draft Bill was in the final stages of preparation, and would be published in the coming months. Get the latest news on the progress of the FOI Reform Bill on the Scottish Parliament's website

Centre for FOI Practitioners' Conference 2024

This year's Centre for FOI Conference has been confirmed for Friday 16 August in Dundee. The theme of the 2024 event will be 'Change and the Future of FOI', with confirmed speakers so far including Keeper of the Records of Scotland Dr Janet Egdell, Scottish Information Commissioner David Hamilton, Dr Karen McCullagh from the University of East Anglia and MySociety's Alex Parsons. Visit the Centre for FOI website for more information

Coming soon from the Scottish Information Commissioner...

There are a few updates coming to the Commissioner's website over the next few weeks...

Firstly, we will be launching interactive updates to our FOI statistics portal, which will present the quarterly FOI data that we collect from public authorities in a far more visual, user-friendly and accessible way. 

Alongside this, we'll also be changing our website and email domain name, moving from the current domain of itspublicknowledge to a shorter, easier-to-type domain. More details on these updates will feature in a forthcoming newsletter - watch this space!

Current bank holidays

Remember that May had two bank holidays which are counted as ‘non-working days’ for the purposes of calculating FOI response times. This year these were Monday 6 May and Monday 27 May. Details of all 2024 Scottish bank holidays are also available online.  

In case you missed it...

Our last newsletter highlighted a wide range of hints and tips to improve public authority FOI performance that were shared by FOI staff during a workshop in December last year. Find out more about these simple tips for better FOI.

Decisions and Learning

Authorities should always consider if information can be disclosed

Our last newsletter highlighted several cases where resolution had provided a faster outcome than waiting for a decision. We recently resolved a further two cases because the authority agreed to disclose information to the requester. 

In both cases the authority withheld information because it was concerned that disclosure would be likely to harm an organisation’s commercial interests. During our investigation, both authorities reconsidered the sensitivity of the information and provided it to the requester (with a small amount of personal information withheld in one case). Both requesters were satisfied, and withdrew their appeals. 

While it would, of course, have been preferable for this information to be disclosed before the appeal, these cases show that it’s never too late to reconsider whether information can be disclosed. 

Resolution helps requesters get the information they’re looking for quickly, while saving time and resources for both authorities and the Commissioner.

Clear explanations are essential for good FOI

It’s good practice for authorities to provide explanations that help the requester understand the response - including why information is not held. People can often expect information to be held, and can be surprised when they’re told it isn’t. Providing a clear explanation of the type of information that is held - or explaining why specific information is not held - is good FOI practice (and can even lead to better relations with service-users). 

In Decision 059/2024 a requester asked for information about an email sent by an authority employee. The authority’s response set out that it did not hold the information, providing a substantial amount of additional information, context and explanation in support of this response. 

While, in this case, the requester was not satisfied with the explanations given, we felt that the authority demonstrated best practice in how it communicated with the requester and how it evidenced its reasons for concluding that no information was held.

Authorities should keep an appropriate record of request-handling...

Authorities must always ensure they keep a record of key actions and decisions when responding to requests under the FOI Act and the Environmental Information (Scotland) Regulations 2004 (the EIRs). 

If an authority wants to issue a Fees Notice under the EIRs, for example, it has to be able to demonstrate that the fee charged is “reasonable”. It should keep an accurate note of the calculations made. 

In Decision 051/2024, we considered a case where a requester had asked for information about a Council’s decision to reduce the speed limits on two local roads. The Council told the requester that the information was environmental information so it had to be processed under the EIRs. It went on to issue a Fees Notice under the EIRs for £208. (Unlike the FOI Act, the EIRs allow authorities to charge the full cost for responding to requests, provided the charge is reasonable). 

When we investigated the case, we found that the Council had not kept a copy of their original calculations, and the member of staff who had carried them out had left. We asked the Council to carry out new calculations. These arrived at a substantially different cost (which is discussed further below). 

It is essential that authorities record and keep copies of the rationale for their decisions when responding to requests – including the basis of cost calculations. This information will be essential if a case is appealed to the Commissioner.

...and should ensure cost calculations relate to the information requested 

It’s also important to ensure that cost calculations relate closely to the information requested, and only cover the costs of providing that specific information. 

As noted above, in Decision 051/2024 a Council issued an initial EIR Fees Notice for £208, but had no record of how that charge had been arrived at. When - following appeal - we asked the Council to carry out a new calculation, the revised charge rose more than tenfold - to £2,145. 

On examination of the basis for this charge, we found that the searches on which the costs were based were inaccurate, in that they were both too broad, and covered too wide a time limit. 

After carrying out a new, more focused and targeted search, the Council found only two documents. Both were subsequently disclosed to the requester.

Coming Up...

3-5 June - International Conference of Information Commissioners 

2024 International Conference of Information Commissioners (ICIC), held in Tirana, Albania. Visit the ICIC Conference website for more information.

10 June - Scottish Public Information Forum (SPIF)

Free online meeting of the SPIF, taking place on Monday 10 June, from 2-4pm. Featuring updates from UNESCO, the Scottish Government, the Information Commissioner’s Office, the Scottish Information Commissioner and the Campaign for FOI in Scotland, along with discussion and debate on relevant topics. Find out more or register for the SPIF.

16 August - Centre for FOI Practitioners' Conference 2024

Annual Centre for FOI Practitioners’ Conference taking place in person, at Dundee School of Law. This year’s theme is ‘Change and the Future of FOI’. Find out more or register for the Conference.

26 November - Holyrood FOI Conference 2024

The 2024 conference will reflect on the impact that FOI has had in Scotland as the legislation approaches its 20th anniversary. Visit the Holyrood FOI conference website for more information.

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