News and Commentary from the Scottish Information Commissioner

News & commentary from the Scottish Information Commissioner

July/August 2008


In this month's Inform I welcome the Scottish Government's commitment to consider extending FOI to cover more bodies, provide examples of cases which have been settled by my staff without the need for decision and introduce my new enforcement strategy, launched at the end of May.

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Designation announcement

As readers will no doubt be aware, Minister for Parliamentary Business, Bruce Crawford, has announced that the Scottish Government will explore the viability of extending Scotland's Freedom of Information (FOI) legislation to cover registered social landlords, local authority trusts and contractors that provide substantial public services.

The announcement indicates that the exercise will be launched with a series of discussions with relevant parties, before a decision is taken in relation to a formal consultation.

Having previously written to the Minister to encourage such measures, I welcome this move. The extension of FOI in Scotland is, in my view, essential if we are to safeguard and enhance the public's right to information in the face of fundamental changes in how public services are delivered. I look forward to contributing to this important and timely review.

Settlement of cases
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Scotland's FOI Act has been in force for only three and a half years but, as our experience and the body of evidence of best practice grows, we are increasingly able to identify circumstances where it is appropriate to work towards settlement of cases, rather than taking all cases to formal decision.  During May and June 2008, for example, my staff resolved 16 cases through settlement.  Settlement is a process through which investigating officers liaise with the applicant and authority to help them identify a course of action which may lead to a mutually beneficial conclusion without the need for a formal decision.  Settled cases will normally be resolved more swiftly, benefiting both the applicant and the authority.

In one recent case, a Neighbourhood Watch Association sought information concerning the Association, which was held by East Renfrewshire Council.  The Council withheld some information, citing the FOI exemptions for personal information (section 38) and prejudice to the effective conduct of public affairs (section 30).  During the investigation, my officer discussed the appropriate application of section 30 with the Council, while also advising the Association of the circumstances under which it may be legitimate to withhold personal information.  As a result of these discussions, the Council withdrew its reliance on the section 30 exemption, agreeing to provide the Association with relevant information.  The Association, meanwhile, accepted that the Council's application of the personal information exemption to some information was appropriate.  Relevant documents were subsequently provided to the Association by the Council, with certain personal information redacted, and the Association's application to me was withdrawn. 

In June, we also settled several cases from an applicant who had asked for information about investment management from a number of public authorities in both Scotland and south of the border.  On receiving the first application, my staff contacted the office of the (UK) Information Commissioner (the ICO), which was also conducting several investigations on the same matter.  The ICO issued the first decision on these cases in February 2008, requiring partial disclosure of the information in question.  Following careful consideration of this decision within the context of both the Scottish information and the specific requirements of our own FOI Act, I concluded that the outcome of the Scottish cases would almost certainly be the same as under the UK Act.  We contacted the relevant public authorities to draw their attention to the UK case, and notify them that I was likely to reach the same conclusion. All the authorities and the applicants agreed to the partial release of relevant information, and their cases were subsequently settled.

Settlement will not always be appropriate, however, and we assess the likelihood of settlement in each case before an attempt is made.  It is not beneficial to attempt settlement where past experience indicates that one party is likely to resist the approach, or where an attempt at settlement may serve only to exacerbate difficulties between parties and, ultimately, prolong the investigation.  Where settlement is appropriate, however, it can be a valuable tool in streamlining the FOI experience for both applicants and authorities.

The number of settled cases is on the increase as these comparative statistics show:

Jan ? June 2006: 19

Jan ? June 2007: 30

Jan ? June 2008: 40




Key decisions issued
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Decision 060/2008 - Professor Walter Dean and Grampian NHS Board

Although FOI law is mostly used to access information that is held by public authorities, occasionally it will reveal that an authority does not, after all, hold the information that a requester expects.  While such an outcome may be disappointing for the requester, finding out what information is or is not held can, in itself, still provide valuable insights into an authority's actions.  Professor Dean aimed to find out what action had been taken after he raised concerns about conditions on a particular hospital ward.  He had received correspondence from the Board which appeared to suggest that an inquiry into his concerns had been carried out, so he asked for the dates of any inquiries conducted and copies of any related reports.

In response the Board said that in fact there had been no inquiry and it held no information relevant to the request.  In order to determine whether the Board did hold relevant information, it was necessary to consider in some detail the steps taken by the Board when responding to Professor Dean's concerns.  This enabled me to confirm that there had indeed been no investigation into his complaints, despite the apparent indication to the contrary.  While I found that the Board had been correct in informing Professor Dean that it did not hold the information, I was critical of the Board's actions in this case and decided that it should have been more open with Professor Dean about the extent of its investigations into his complaints.  As a result, I found that the Board had failed to comply with its duty under the FOI Act to provide advice and assistance to Professor Dean.

Decision 071/2008 - Mr S and Strathclyde Police

In this decision, I considered whether Strathclyde Police should disclose the number of police officers assigned to duties relating to a football match at Fir Park Stadium, Motherwell on Tuesday 30 January 2007.  The case concerned whether disclosure of the number of police officers would impact on their ability to police football matches effectively, with the Police arguing that release would prejudice substantially their ability to combat football hooliganism.  I accepted that 'hooligan' groups are capable of using information on police planning to their advantage, and that the release of some information of this kind into the public domain may cause real harm to law enforcement.  However, in this case I was considering only the number of officers assigned to a match.  Mr S pointed out that the circumstances of this particular match were unique.  It was a cup semi final between Kilmarnock and Falkirk, with special permission granted for the game to be held at a much smaller stadium than is usual for this type of match.  Had a request been made for the number of police officers present at every match played in a football season, there would be a stronger argument that the information could be used by groups intent on disruption.  I was unable to accept, however, that the release of only the number of officers on duty at one particular match would have the effect claimed by the Police.  I concluded that this information, either alone or with other publicly available information, would not enable a useful picture to be created of Strathclyde Police's plans for future matches, and therefore I ordered release.

The full text of all decisions issued under Scotland's FOI legislation can be viewed on my website at: 

Unless otherwise stated, the decisions listed may be appealed by either party to the Court of Session on a point of law.  Any such appeal must be made within 42 days of the date of intimation on the decision.


At a glance - May and June 2008
New applications received: 51
Enquiries responded to: 257
Cases closed: 68
Decisions issued: 18
News in brief

Enforcement Strategy

In May I launched my new enforcement strategy, which will be used as a basis to identify and take action against any authorities that continually fail to comply with their responsibilities under Scotland's FOI legislation.  While many Scottish public authorities display good practice in complying with their FOI obligations, there is evidence emerging that a small number of authorities may persistently fail to do so.  The initial stages of this strategy will involve an information gathering exercise to identify authorities which may need specific attention.  Following this, my staff will work with targeted authorities to develop an improvement action plan.  Where the plans are not met, however, or where failings are sufficiently serious, I will use my powers to make a Practice Recommendation or issue an Enforcement Notice against the authority.  The full strategy is available from my website.

Health and Education Survey

Alongside the information-gathering element of my enforcement strategy, I also intend to study the volume of information requests to authorities in the health and education sector, following anecdotal evidence which suggests that these bodies are receiving proportionately fewer requests than authorities in other sectors.  The study will determine whether lower levels of requests are received by these sectors and, if so, begin to explore the reasons for this.

Councillor Awareness

My staff took part in an awareness session for Aberdeen City councillors, on 23 June.  The session, run in partnership with staff from the (UK) Information Commissioner's Office, briefed councillors on what FOI and Data Protection means for them.  The 15 participants recognised the benefits of openness in helping the public understand the decisions councillors take in the course of their council duties.  They were keen to explore how they could use their own FOI rights to hold public authorities to account and to support their constituents.  A series of factsheets for elected members on the obligations and opportunities of FOI will be available soon on my website.

Publication Schemes

The first tranche of publication scheme re-approvals was completed last month. Under the FOI Act, all Scottish public authorities are required to maintain a scheme, approved by me, which sets out the information they routinely make available, along with details of how that information can be accessed.  The first wave included the Parliament, the Scottish Government and its agencies, and non-ministerial office holders in the Scottish Administration.  The new schemes demonstrate substantial improvement on the schemes approved in 2004.  My staff are working with local government, higher and further education and the police to ensure that model publication schemes are approved in preparation for the February 2009 submission deadline for these sectors.

Annual FOI Conference

I am happy to announce that my 6th annual conference on FOI will be held in conjunction with Holyrood Conferences on 10 December 2008. This year, the conference will look at the implications of the possible designation of new public authorities under access to information legislation, and also consider the definition of environmental information and the impact of designation on access to environmental information. To book now and receive an early bird discount, please go to Holyrood Conference 2008

Contact us
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My staff are on hand to provide information, support and advice on any issue relating to freedom of information. We would also be pleased to receive any feedback you may have on our website, or on Inform itself. Contact us at:

Scottish Information Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, KY16 9DS

Telephone: 01334 464610
Fax: 01334 464611

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