News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner
July / August 2013

Commissioner's commentary
Photo of Rosemary Agnew

The summer is drawing to an end and what a busy summer it has been (although, it's never really quiet around here!). There's lots to look forward to: in September I'll be laying the annual report and telling you all about my revised strategic plan, we'll be able to see the first ever national FOI statistics return (more below) and there are some particularly interesting conferences and meetings coming up.

Each edition of this bi-monthly newsletter is a chance not only to share new developments, but also to reflect on the learning which we can take forward.

Collection of FOI / EIR statistics

We launched our FOI statistics portal earlier this month.

As you may know, we are asking all Scottish public authorities to provide quarterly statistics for handling FOI and environmental information requests. We will be publishing the data online in a machine readable format. The portal (which is really easy to use) is the method by which you can do this.

Why gather national statistics? We (all) need this information to gain a better understanding of information requests across Scotland and the work for public authorities. Discussions about good practice for both authorities and requesters will be better informed. Authorities will be able for the first time to see how their own experience compares with others across the public sector. Academics and policy makers too may be interested in trends or issues suggested by the data.

I am keen, though, to manage expectations about the new information that will be available. This is the first time that national FOI statistics have been gathered and I anticipate that it will be a while before we iron out the glitches to produce robust data. In particular, we know that authorities collect FOI statistics in different ways and that most don't actually count all the requests they respond to straight away as part of their normal business. When we release the first quarter's data, we will be taking care to set out this context to readers. While we expect the first release of data will raise as many questions as it answers, it is the first step in achieving complete and comparable statistics.

You can find out more about the FOI and EIR statistics database, including FAQs and support materials in our statistics web pages 

Supreme Court Dismisses Appeal

Naturally I'm pleased that the Supreme Court's first Scottish FOI case resulted in dismissal of the appeal against the Scottish Information Commissioner's decision. But the Court's judgment, issued at the end of July, also brings to an end the long-running dispute about Decision 056/2011 involving Mr Mark Irvine and South Lanarkshire Council. The Court upheld the decision that information about the Council's staff pay structure should be released into the public domain.

The case involved detailed consideration of the relationship between an individual's right of access to information under FOI, and the duty to protect personal data under the Data Protection Act 1998 (DPA). The relationship between FOI and data protection law can be complex where requested information contains third party personal data. In such cases we are required to consider condition 6 of Schedule 2 of the DPA, in conjunction with section 38(1)(b) of the Freedom of Information (Scotland) Act 2002. We must consider the interests of the person seeking the information, and their right of access under FOI, alongside the interests of the person who is the subject of the information.

It is good news that the Supreme Court's judgment confirms that our approach is robust. Paragraph 18 of the judgment sets out very clearly the tests which should be applied:

  1. Is the requester pursuing a legitimate interest or interests?
  2. If yes, is the processing involved necessary for the purposes of those interests? (In other words, is the disclosure proportionate as a means and fairly balanced to its ends, or could the legitimate interests be achieved by other means which interfere less with the privacy of the data subject?)
  3. And, if yes, even though the processing is necessary for the purpose of the requester's legitimate interests, is the processing warranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject(s)?

This last point is, of course, the all-important balancing test which considers the weight of the rights of the requester and the data subject.

For more detailed guidance on responding to requests for personal information, read our briefing Section 38 (personal information) briefing.

Rosemary Agnew's signature

Rosemary Agnew
Scottish Information Commissioner




At a glance - August 2012 to July 2013
 August 2013 Inform Chart
Compliance, good practice and lessons learned
Filing cabinet with papers flying out

Lessons from Decisions Round-up

Despite it being the holiday period, we issued a large volume of decisions in July and August. As a result the weekly Decisions Round-ups are particularly full of learning points, some sadly familiar and some new.

The neither confirm nor deny provision in section 18 of the FOI Act was the subject of Decisions 115/2013, 116/2013, 120/2013123/2013, 150/2013 . This allows authorities to refuse to say whether they hold information, but only if specific exemptions (sections 28 to 35, 38, 39(1) or 41) apply to the information. If the specific exemption is "qualified" (subject to a public interest test), then the exemption can only be applied if the balance of the public interest is in favour of non-disclosure.

It's important to recognise that applying section 18 often involves two public interest tests:

  1. The first test is whether the balance of the public interest is in favour of maintaining the exemption that applies, and
  2. The second test is to determine whether to confirm or deny that the information is held would be contrary to the public interest.

We have seen relatively few cases involving the use of section 18 in Scotland. But the recent addition (through the Freedom of Information (Scotland) (Amendment) Act 2013) of section 38 to the list of applicable exemptions may change that. The addition means that the neither confirm nor deny provisions can now be applied to requests for personal information. It is worth remembering that the parts of the section 38 exemption which are subject to a public interest test are rarely used by authorities so the double test will not often apply. But authorities will need to be diligent about this if they apply section 18 to information withheld under section 38.

We'll be issuing guidance on section 18 later this year.

Repeated requests were also highlighted this month. In Decision 139/2013, a close reading of the request revealed that it was broader than an earlier request and therefore not repeated. Decision 132/2013 emphasises the need for effective logging and tracking systems to avoid confusion. There was learning for applicants too: in Decision 139/2013 repeated correspondence on the same issue led to a "vexatious" ruling by the Commissioner.

Lessons from assessments

We published assessment reports for Scottish Legal Aid Board (SLAB) and Aberdeen City Council (ACC).

Compliance with timescales was an important feature of both reports. SLAB's emphasis on "getting FOI right first time" has contributed to its meeting the 20 working day requirement for responses in 97% of cases. Our assessment of ACC found promising indications of improvement in what had previously been a poor response rate. The turnaround is being achieved through new performance monitoring measures, an escalation process for late responses and an extensive staff training programme.

Both authorities demonstrated internal systems to ensure that there is learning from practice. Both authorities also demonstrated the importance of senior level commitment to achieving performance improvement.

Over the last year we have reviewed our approach to promoting good practice and have committed to developing more self-assessment tools and practice guides, building on the experience of the assessment programme. Details of our plans for this year are set out in our Operational Plan 2013/14.

News in brief
Pile of Newspapers
Bringing new bodies within scope of FOI

We continue to watch with interest the progress of the first order under section 5 of the FOI Act, which has been laid before the Scottish Parliament. If approved, the order will designate 25 bodies which provide recreational, sporting, cultural or social facilities and activities. The Local Government and Regeneration Committee will receive evidence on the order, including from the Deputy First Minister and Scottish Council for Voluntary Organisations (SCVO), on 4 September 2013. The Committee will report to the Parliament by 19 September 2013.

We are working with the bodies which fall within scope of the Order to explore how we can help them prepare for their new responsibilities.

Response to the Children and Young People (Scotland) Bill

In July the Commissioner provided views on the her views on the Children and Young People (Scotland) Bill 2013  to the Education and Culture Committee. The Bill makes several references to the publication of new information by bodies which are already subject to FOI law. While the Bill leaves it to the authority to decide the manner in which information should be made available, Rosemary alerted the Committee to the requirement in the FOI Act to adopt and maintain a publication scheme. If the Bill proceeds, we will update our publication scheme guidance to reflect the new requirements.

Burden or benefit? New developments in information rights, communication and compliance 

This one-day conference on 4 October 2013 is hosted by the Centre for Archive and Information Studies and the Centre for Freedom of Information.  Speakers include Christopher Graham, Information Commissioner; Rosemary Agnew and Tim Ellis, Chief Executive of the National Records of Scotland. Information about the event will be available on the Centre for Archive and Information Studies website from next week. 

Centre for FOI Practitioners' Conference - resources now available

As promised in the last edition of this newsletter, the video footage and presentations from the plenary session and presentations at the Practitioners' Conference on 27 June are now available in the Centre for FOI Archived FOI Seminars section of the Centre for Freedom of Information's website Seminar reports will be available shortly. Our thanks to everyone who contributed to some very lively and informative debate on the day.

Learning and Development

Earlier this year we published the findings of our Learning and Development Survey examining the FOI learning and development provision already in place in Scottish public authorities and their future requirements. Our four year strategy for FOI learning will be published for consultation later this year.

Other FOI News


Revised Open Government Licence

In June, The National Archives launched version 2.0 of the Open Government Licence. The new version contains a new section headed "non-endorsement" (to resolve issues about re-use of the information) and the new OGL symbol which identifies that the information can be used and re-used under open licensing.

Guardian to appeal High Court ruling on royal letters

The Guardian newspaper has announced that it will appeal the judicial ruling in the High Court in July. The ruling found that the Attorney General acted lawfully in vetoing the Information Commissioner's ruling that letters from Prince Charles to government departments should be disclosed.

Westminster inquiry into statistics and open data

The Westminster Public Administration Select Committee (PASC) launched an open data inquiry into the use of statistics and open data in Government, focussing on the progress of the Government's Open Data strategy. The Committee has issued a call for written evidence which closes on 3 September 2013.

100 best records management resources

JISC-mail (a higher education authority collaboration) has published a list of the 100 best records management resources on the web. The authors welcome further contributions and are considering the development of a wiki to maintain them.


Irish FOI reforms

The Irish Government has introduced a Freedom of Information Bill  Freedom of Information Bill. The Bill includes provisions to:

  • Introduce a publication scheme requirement
  • Respond to the increasing use of electronic formats
  • Reduce review and appeal fees introduced in 2003
  • Remove the absolute exemption for communications between government members
  • Make Cabinet papers available after five years.

Revision of the Aarhus Implementation Guide

A second edition of The Aarhus Convention: an Implementation Guide was published in April. The guide is sometimes referenced in the Commissioner's decisions on cases under the Environmental Information (Scotland) Regulations 2004.

Changes include:

  • Clarification that raw environmental data should not be dealt with as material in the course of completion (page 79)
  • Expanded guidance on internal communications (also page 79) and legitimate economic interest (page 82).


Contact Us
Rosemary Agnew and her team 2012

The Commissioner's staff are pleased to provide information, support and advice on any issue relating to freedom of information. We also welcome your feedback, including about our website and Inform newsletter. Contact us at:

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


Telephone: 01334 464610


Fax: 01334 464611

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