FOI news from the Scottish Information Commissioner
17 September 2024
How are public bodies in your area performing on FOI?
Do you want to know how public authorities in your area are performing when responding to FOI requests?
How many are answered on time? How often is information disclosed? How common is it for requesters to ask for a response to be reviewed? How many environmental information requests are made?
The good news is that all this information (and more...) is now available in a visual, interactive, at-a-glance format through our new-look FOI statistics portal.
We've been collecting data on public authority FOI performance since 2013 but, until recently, this data was only available by downloading large spreadsheets containing a huge amount of information. While these are still available, our new portal extracts key data - viewable for the whole of Scotland or by public authority or sector - and presents this in a far more accessible, usable and understandable way.
For example, the new portal shows at a glance that Scotland's public bodies reported receiving more than 82,000 FOI requests over the last year, 89% of which were responded to within legal timescales. 77% of these resulted in some or all of the information being disclosed to requesters.
Interested in finding out more? Visit the portal using the link below and start exploring!
And if you've got any suggestions to help make the portal even better, contact us to let us know!
Scottish Public Information Forum - 23 September 2024 The Scottish Public Information Forum (SPIF) – a forum which aims to bring together FOI staff, policy-makers, requesters, academics, campaigners and anyone else with an interest in FOI in Scotland – will next meet online on Monday 23 September. The September meeting is also timed to coincide with International Right to Know Day on 28 September.
Attendance is free, with the agenda for the meeting including Scottish Information Commissioner David Hamilton’s reflections on his first year, along with updates from the UK Information Commissioner's Office (ICO), the Scottish Government and the Campaign for FOI in Scotland.
We've got a new address... The Scottish Information Commissioner recently moved to a new online home, the (much easier to type...) www.foi.scot. Alongside our change of address, we've also introduced new email addresses - so enquiries@foi.scot is the address to contact if you have any questions or comments about FOI in Scotland, while our staff email addresses have also moved to the @foi.scot domain.
Our old website and email addresses will remain active for the next year, with any references to our old domain being redirected to our new home. We would recommend, however, that any public bodies, advice-providers or other stakeholders take steps to update their own references and guidance with our new address, to ensure that any links continue to work into the future.
Where relevant, we'd also suggest that you add the @foi.scot domain to your register of 'safe senders' to ensure that you continue to receive emails from our team. For most email services, this is a setting you can find within your 'junk' inbox.
eCase FOI Awards 2025 Nominations for the 2025 eCase FOI Awards will open on Thursday 26 September at 12 noon, supported by a live webinar which will introduce the awards and set out what the judging panel will be looking for. So if you have an individual, team or initiative that is deserving of recognition, tune in to find out more!
Reducing FOI appeals eCase also ran two short webinars over the summer, focussing on how public authorities can reduce the likelihood of FOI appeals. One features advice from FOI practitioners, including an eCase Award winner from Scotland’s education sector, while the other featured guidance from regulators, including staff from our office.
If a case is appealed to the Commissioner there are various steps that public bodies can take to ensure that the investigation runs as smoothly as possible. Over the summer we held a series of webinars with advice for public bodies which introduced our new appeals process. The material from these webinars, with advice and guidance on what we expect when we investigate an appeal, is available on the events and training page of our website.
Scottish Government announces FOI objectives
The Scottish Government has set out its FOI policy objectives for 2024-2026. The objectives focus on three workstreams, which aim to consider and use the powers to extend FOI, update the statutory guidance on FOI, and maintain FOI coverage across the Scottish public sector.
The circumstances of this case were particularly unusual. The Scottish Government had exercised a rarely-used right to withhold information from the Commissioner when he considered the appeal. While withheld information must normally be supplied to the Commissioner, the FOI Act allows legal advice to be withheld where the advice relates to an organisation's obligations under FOI law.
In such circumstances, however, it will be essential that a public authority makes a robust and compelling case for the application of any exemptions (with full consideration of the public interest, where appropriate). In this case, the Commissioner noted that the submissions made were largely generic, with limited reference to the specific circumstances. The Commissioner's decision found that, while the FOI Act's 'confidentiality' exemption will apply to the advice in question, he nevertheless found that the consideration of the public interest, in light of the evidence presented, favoured disclosure.
When we can't (and when we can) investigate...
Under section 48 of Scotland's FOI Act, there are some limited circumstances where the Commissioner is unable to investigate an authority's FOI request-handling.
Generally, section 48 means we can't investigate appeals about the handling of information requests by the Crown Office and Procurator Fiscal Service (COPFS). However, we can investigate appeals relating to COPFS if the request does not directly relate to decisions taken by the Lord Advocate in his role as head of the systems or criminal prosecution and investigation of deaths in Scotland.
Decision 097/2024 concerned a request for the salary of a named employee of COPFS. We were able to investigate this appeal because we were satisfied that the exclusion in section 48 did not apply, allowing us to issue only our eighth decision in relation to COPFS.
Ultimately, we found that COPFS was entitled to refuse to comply with the request because it was vexatious. Taken in isolation, the request might not appear to be vexatious. However, given the history and nature of the requester’s correspondence, we found that it was entitled to reach this conclusion.
The importance of clear and accurate responses
Decision 095/2024 examined whether the Scottish Government held information relating to meetings it had held with a commercial organisation.
Having reviewed the Scottish Government’s submissions, we were satisfied that it did not hold the information requested. However, we found that there were factual errors in both the initial response to the request and in the subsequent review outcome. One of the purposes of the review process is to allow errors to be corrected, so it was unfortunate that these errors were not corrected on review.
While the errors were not material to the question of whether the Scottish Government held the information, they had undermined the requester's confidence in the response.
It is essential that authorities provide clear and accurate responses to information requests. While unclear or inaccurate language may not necessarily mean a decision is wrong, it is likely to undermine the confidence of a requester in the response. This may, in turn, increase the likelihood of a requester appealing the request to the Commissioner.
When is a request 'repeated'?
Scotland's FOI law allows authorities to refuse to comply with requests where they are identical or substantially similar to a previous request from an individual, unless there has been a reasonable period of time between the requests.
Generally, it should be relatively straightforward to establish whether a request is identical or substantially similar to a previous request, but the question of whether a 'reasonable period of time' has elapsed can often be more challenging.
The following questions can help authorities answer this question:
Has the information changed?
Have the circumstances changed?
Decision 110/2024 examined whether the Scottish Prison Service was entitled to refuse a request because it was repeated. We agreed that the request was similar to a previous request made by the requester (and complied with by the authority). However, we also found that it was not identical or substantially similar because - while the subject matter was the same - the information requested and the timeframe covered were different.
We also found that a reasonable period of time had passed between the date of the original request, with more than a year between those two dates. This was particularly the case given that the information captured by the new request would be different.
We therefore found that the SPS was not entitled to refuse to comply with the request on the basis that it was repeated.
23 September 2024 - Scottish Public Information Forum Free online meeting which is open to all, featuring Commissioner David Hamilton's reflections on his first year in post. Register to take part in the meeting.
26 September 2024 - eCase FOI Awards 2025 live launch
28 September 2024 - International Right to Know Day
Annual event celebrating the impact of FOI and other access to information laws and initiatives around the world. Visit the Right to Know Day website.
7 October 2024 - Submissions open for Quarter 2 FOI Statistics
Our statistics portal opens for submission of Quarter 2 statistics. We will issue the usual advisory email with passwords to designated contacts. Visit the FOI Statistics Portal.
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!
