Open Update: FOI news from the Scottish Information Commissioner

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Open Update

FOI news from the Scottish Information Commissioner

June 2024

New Approach

Setting out our new approach...

Over the last few weeks we’ve been providing public authority staff with guidance on our new approach to appeal investigations. In doing so, we’ve also piloted a new approach to events, with these sessions delivered through short, practical, lunchtime webinars, giving participants the chance to find out more and ask questions about our new strategy, without impacting too much on their busy ‘day-jobs’.

Our ‘FOI Appeals: Get It Right First Time’ webinars were a real success: they were fully booked, with more than 300 practitioners signing up to attend the five webinars, and lots of interesting discussion, questions and suggestions for future content raised.

Key learning from these sessions included: 

  • Get it right first time – the appeal submissions made to us must be comprehensive and robust. Public authorities should ensure that their arguments are clearly stated, and that every question set by our investigators - and test required for each exemption - is fully addressed.
  • Respond promptly – to support the efficient progression of cases, we require that most of our appeal correspondence is answered within two weeks, with extensions only available in rare circumstances. 
  • Keep appropriate records – the records kept during the handling of a case will be vital in the event of an appeal. Authorities should keep an accurate organisational record of their rationale and decision-making, including a comprehensive record of any searches that have been carried out – we examine these closely. 
  • Take reviews seriously – if a request is reviewed, it’s a strong sign that it might be appealed. Authorities should use the review process to comprehensively re-examine the case, checking whether the right decisions have been made for the right reasons. It’s also a chance to check all relevant tests have been considered, that searches have been appropriate, and that there are reliable records to refer to in the event of an appeal. 
  • Think about resolution – authorities should consider during the appeal process whether resolution of the case might now be appropriate – for example through the provision of some or all of the information.

Not everyone was able to attend though, so we’ve made our presentation slides and notes available online, accessible via the link below.

We’re also keen to explore the delivery of more sessions of this type in future. If there’s an issue you’d like to see covered through a future webinar, let us know by sending your suggestions to

FOI News

2024 Practitioners' conference: speakers announced

The 2024 Centre for FOI Practitioners’ Conference will see a range of speakers explore the future of FOI. Speakers so far confirmed for the Dundee event include: 

  • Keeper of the Records Dr Janet Egdell 
  • Scottish Information Commissioner David Hamilton 
  • Alex Parsons, MySociety 
  • Kevin Dunion, University of Dundee 
  • Dr Karen McCullagh, University of East Anglia 
  • Lorraine Currie, Anderson Strathern 
  • Roger Halliday, Research Data Scotland 
  • Fiona Killen, information law specialist 

...and many more! Visit the conference website for more information.

Commissioner escalates FOI intervention 

The Commissioner has escalated his intervention to bring improvements to the FOI request-handling of NHS Greater Glasgow and Clyde from Level 1 to Level 3 – our second highest intervention level. The decision comes following a period in which no significant improvements had been achieved, with the organisation achieving an average on-time performance level of just 59% across 2023-24. 

The escalation of the intervention aims to support necessary improvements to be made, and the Commissioner’s staff will be working with the organisation as it addresses these important issues. Read more about the escalation of this intervention.

Preventing FOI Appeals: new webinars 

The organisation eCase will be hosting two UK-wide online webinars in July, focused on providing advice and guidance for public bodies to help to prevent FOI appeals. The first will feature advice from practitioners, while the second will feature guidance of avoiding appeals from the ICO and the Scottish Information Commissioner. 

Find out more about these sessions at:

International Conference of Information Commissioners 2024 

Earlier this month Commissioner David Hamilton attended his first International Conference of Information Commissioners. The Conference, which took place in Albania and was attended by representatives from more than 30 countries, explored the role of transparency in the digital age, and the part it plays in empowering individuals and supporting public engagement. The conference concluded with the issue of a joint statement by Commissioners which underlined these important issues. 

Commissioner David Hamilton will share his own reflections from this hugely valuable event in the next edition of this newsletter.

Visit our new home... 

The Scottish Information Commissioner has a new online home – you can now find us at Don’t worry though, anyone trying to access the site through our old address – – will be redirected to our new location for the foreseeable future. We also plan to change our organisational email addresses shortly but, in the meantime, you should continue to use the address for emails. 

Like many who get a new home, we’re also planning to redecorate…we’re shortly about to make some changes to the look of our website, so keep checking to find out more!

Decisions and Learning

Evidence is key when demonstrating a request is vexatious

Under FOI law, public authorities can refuse to respond to requests if they are ‘vexatious’. The right to request information is an important legal right, so the use of this provision must be supported by clear evidence.

In Decision 065/2024, a requester made a multi-part request to the authority. The requester had made a significant number of previous requests, including almost 50 relating to the same subject matter.

The authority argued that the request was vexatious because the number of requests imposed a significant burden on it, because the request did not have a serious purpose and because it had the effect of harassing the authority and its employees.

We accepted that the request was vexatious, but we found that the authority only provided enough evidence to support one of these claims. 

While it was possible that the number of requests had imposed a significant burden, the authority had not provided enough evidence to demonstrate this. We also did not accept that the authority had provided enough evidence that the request had no serious purpose.

The authority was, however, able to demonstrate that the request had the effect of harassing the authority and its employees so, in the circumstances, we agreed it was vexatious. Using the ‘vexatious’ provisions involves denying people of their FOI rights, so it’s essential that authorities ensure they have enough evidence to justify its use in every case.

A rare exception... 

The Environmental Information (Scotland) Regulations 2004 (the EIRs) allow authorities to refuse to make information available if a request is too general. It’s not a provision we’re asked to consider often – we’ve only issued three decisions since 2005 – one of which was last month. 

For the exception to apply, there is a three-part test and all parts must be met: 

  • the request must be too general.
  • the authority must have asked the requester to provide more information which will describe the information they want reasonably clearly.
  • the authority must have assisted the requester in providing that information.

In Decision 082/2024 a requester asked a council for a specific planning file. The requester did not possess the reference number for the planning file, which the council said it required to find the information. 

We found that the council had failed to ask the requester to provide more information which would describe the information they want and had failed to assist them in doing so. As the council failed to meet those parts of the three-part test, we did not consider whether the request was too general. We required the authority to provide advice and assistance to the requester.

When is information 'held' by an authority? 

FOI law gives people the right to request the information that is held public authorities. There are, however, some circumstances where information which an authority has in its possession may not be ‘held’ for the purposes of FOI law. This might occur, for example, where information is held by an authority only on behalf of another person.

In Decision 068/2024, a requester asked for the number of emails a councillor had sent and received. The council initially said it held the information only on behalf of the councillor, and so did not hold it for the purposes of FOI law. 

During our investigation, however, the council reconsidered its position. It explained it had initially thought the request asked for information held by the councillor in relation to that role, but it now understood the request was seeking the number of emails sent and received only. It accepted that this information was held for the purposes of FOI law and provided the information to the requester. 

We agreed the authority had initially misunderstood the request. It is essential that authorities ensure they carefully read the terms of information requests as it can affect the response provided (including on whether the information is held). Our 'Information not held' guidance also has further advice when considering this specific provision.

Coming Up...

3 July - eCase 'How to be less Appealing' webinar 1

Lunchtime webinar focussing on strategies to avoid FOI appeals, with advice from FOI practitioners.

30 July - eCase 'How to be less Appealing' webinar 2

Lunchtime webinar focussing on strategies to avoid FOI appeals, with advice this time from staff from the Scottish Information Commissioner and the UK Information Commissioner’s Office (ICO).

16 August – Centre for FOI Practitioners’ Conference 2024

Annual Centre for FOI Practitioners’ Conference taking place at Dundee School of Law. Find out more or register for the Conference.

26 November - Holyrood FOI Conference 2024

Speakers include Commissioner David Hamilton and Minister for Parliamentary Business Jamie Hepburn. Visit Holyrood FOI 2024 for more information and updates as they become available.

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