News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner

June/July 2013

Commissioner's commentary
Photo of Rosemary Agnew

Since the last edition of Inform in April 2013, I have celebrated my first anniversary in post!  It certainly doesn't feel like a whole year - where has the time gone?  On the other hand, it can be difficult to believe it's only been a year, so much has happened since May 2012.

It's also the beginning of a new year for us, and we have recently published our operational plan for 2013/14.  The plan describes how we'll use our resources to realise our strategic vision and aims.

Our operational plan sets out, for the first time, high-level Key Performance Indicators (KPIs) for how long we'll take to complete investigations into appeals.  It also outlines all the major activities we'll undertake during the year, broken down into 11 functional areas.  The plan also sets out some of the key deliverables that will impact on both authorities and requesters.

Our operational plan is available on our website at Strategic and operational plans - or call us on 01334 464610 to ask for a copy.

Learning and development

We published the findings of our learning and development (L&D) survey in May. Thanks again to all of you who shared your views with us.  A strategic priority for us is enabling and supporting authorities to develop and maintain high standards of FOI practice and you gave us clear direction in terms of how and where you think we can add value.

For me, one of the most significant findings was the link between the strategic importance given to FOI by senior public sector managers in Scotland and the perceived usefulness of FOI L&D - put simply, good FOI performance starts at the top!  So we're going to be looking at how we can help senior managers understand the link between FOI and risk, governance and effective communication.  There's a lot to learn from those who are doing this well already.

It was hugely encouraging to see just how much FOI L&D is already happening.  Of course the challenge is to capitalise on that.  We don't want to reinvent the wheel, instead we need to help authorities share what they are doing, and we see ourselves playing a "brokering" role in that process.

The survey heard from FOI practitioners, experts in their field who are looking for continuing professional development in more specialised areas, such as applying exemptions effectively.  However these same practitioners tell us it's hard to find the time to access FOI L&D and so we'll be exploring how to provide the support they need in a sustainable way.

In summary, the survey findings demonstrated that there's a lot we can achieve but it can't all be done this year.  We will start by publishing our FOI L&D strategy by the end of 2013.  Delivering against the many exciting opportunities that the survey highlighted will be a strategic theme throughout my term in office.  So watch this space…

Learning and Development Survey - Report of Findings

Collecting FOI and EIR statistics
Image of calculator

At the 10th Annual Holyrood FOI Conference in January 2013, I made a commitment to create a new nationwide FOI statistics database, and to make data from it available as a public online resource.  Since then I've written to Scottish public authorities to alert them to my intention to start collecting data from 1 April 2013.  We're providing a user-friendly online collection tool. Authorities will simply submit their data to us online and the collection tool will produce machine readable reports which can be downloaded from our website.  We aim to launch the new online tool on 19 August 2013, in time for authorities to submit their first quarterly return (covering the period April to June 2013) by 16 September 2013.  

In the meantime, are producing some Q&As for authorities to help them prepare.  These will be available shortly, so bookmark this page:

At a glance - May 2012 to April 2013
Charts for June 2013 Inform
Compliance, good practice and lessons learned
Filing cabinet with papers flying out
Lessons from Decisions Round-up …

A key theme from the Decisions Round-up in May and June is the importance of taking a customer service approach to FOI. Good FOI practice and good customer service go hand-in-hand. Where authorities see FOI requests as a normal part of doing business with the public, they are far less likely to make technical errors such as missing statutory deadlines, failing to tell requesters of their rights, and failing in their statutory duty to advise and assist. (Decision 098/2013, Decision 099/2013, Decision 103/2013 provide useful examples.)

Good procedures also play a vital role in good FOI practice. There were a number of decisions issued where poor procedures, or procedures poorly followed, led to appeals to the Commissioner which could have been avoided. Authorities should ensure they have:

Finally, there were a number of decisions which highlighted types of information which will rarely be released, for example:

… and lessons from assessments

Our two most recently published assessment reports, following visits to Audit Scotland and University of Stirling, highlight once again the importance of senior management commitment to FOI as the critical starting point for good practice.

Both authorities showed high-level senior engagement in getting FOI right first time and this manifested itself across all practice areas, specifically in well-developed performance management frameworks and clear allocation of responsibilities. These are common features in a strongly performing authority.

A strength in both authorities was their approach to handling reviews - often an area of weakness in our experience. Audit Scotland convenes a special review board which handles all reviews independently, ensuring that requests for review benefit from a fresh pair of eyes and are managed consistently. Similarly, the University convenes a panel for complex reviews, but ensures simple reviews are handled quickly by allocating them to an individual who was not involved in the original request.

An area for action by both authorities is recording searches. It would save time and effort at review stage and during any investigation if the authority can easily demonstrate that adequate searches have been undertaken. Both authorities were also advised to review their contract clauses to bring them in line with the guidance in the section 60 code.

View the assessment report online at

News in brief
Feedback from the first FOI Practitioner Conference

The first FOI Practitioners' Conference, hosted at the Centre for Freedom of Information in Dundee, took place on 27 June 2013.  80 delegates heard the Commissioner set out her view of the challenges ahead, and Sam Baker from the Scottish Government's FOI Unit talk about recent and forthcoming changes to legislation. Centre Director Kevin Dunion shared his views on the difference constitutional change may make to Scotland's access to information regime.

Practitioners have told us they want more focus on practical issues, which affect them in their daily work. We responded by offering practice-based workshops and seminars at the Conference - ranging from dealing with difficult requesters, making decisions about practical publication, to the basic challenge of "getting requests right first time".

For those who could not attend, we will be publishing seminar reports and a video of the plenary session on the Centre for Freedom of Information website.

New guidance - tips for requesters

We've updated our website with a new page of helpful hints, tips and guidance for FOI requesters. The page provides advice on how to get the most out of FOI, and on the common pitfalls to avoid when requesting information. We hope that requesters will use this advice to inform the drafting of their information requests. It is also an additional resource for public authorities as they can direct requesters towards independent advice on making effective requests as part of their own advice and assistance giving.

Visit the webpage at: The page also contains a downloadable PDF version of the guidance.

Culture and leisure bodies to be subject to FOISA and the EIRs

Ministers laid an order on 7 June 2013, under section 5 of FOISA, which (if approved by the Scottish Parliament) will bring around 25 bodies delivering culture, leisure or social activities on behalf of Scottish local authorities within scope of Scotland's access to information laws by April 2014. The Local Government and Regeneration Committee will report on the order to Parliament by 19 September. If the Committee recommends that the order is adopted, there will be a vote in the Parliament soon after. In the meantime, we are liaising with the bodies which are covered by the draft order, to help them to prepare for coming under FOISA in April 2014.

View the s5 order.

Section 59 Consultation

The Scottish Government is currently consulting on a draft order under section 59 of FOISA, to reduce the lifespan of some specified exemptions. The "lifespan" of an exemption is the period from the creation of information within which an exemption can be applied to it. The draft order attached to the consultation proposes to reduce the lifespan of each of the exemptions at section 58(1) of FOISA from 30 years to 15 years e.g.

  • Section 28 - Relations with the UK
  • Section 29 - Formulation of Scottish Administration policy etc.
  • Section 30 - Prejudice to effective conduct of public affairs
  • Section 33(1) - Trade secret/prejudice substantially commercial interests
  • Section 40 - Audit functions

Two of the exemptions in section 58(1) will be subject to different timescales:

  • Section 36 (confidentiality) will be retained at 30 years
  • Section 41(a) (communications with HM, etc.) will fall away either five years after the "relevant death", or 20 years after the information has been created, whichever occurs latest.

Ministers plan to lay an order later this year, with changes coming into force in 2014. The consultation runs until 31 July 2013.

The Commissioner's submission to the consultation is on our website under: Other Reports of the Scottish Information Commissioner

For further information or to find out how to respond to the consultation, visit

Other FOI News

UK and Ireland

  • An ICO blog post gives some tips on how to avoid inadvertently revealing personal data in spreadsheet "pivot tables", and endorsing the messages in an earlier blog from WhatDoTheyKnow on the same subject.
  • The ICO has published new/updated guidance on a range of issues including personal information, investigations and proceedings, and charging for environmental information. This is part of a programme of reviewing all their guidance. View all ICO's guidance.
  • The ICO launched its Annual Report 2012/13, cautioning that it will be remaining vigilant for proposals that may restrict the UK FOI Act. View the ICO's Annual Report 2012/13.
  • On 19 June, an MP introduced a Private Member's Bill which would require the names of requesters using FOIA to be made public. The Campaign for FOI have raised some concerns about the implications of the Bill. View Campaign's comments.

  • The revised Re-use of Public Sector Information Directive was published on 27 June 2013, in the Official Journal of the EU. The latest date for transposition into UK law is 18 July 2015. The main changes are definitions of "machine readable format" and "marginal cost", a qualified exemption for Trading Funds and a requirement for Member States to set out criteria for charging above material costs.  View the revised Directive in the OJEU
  • Irish Ombudsman and Commissioner Emily O'Reilly has been elected as European Ombudsman. She will continue in her current role until 1 October 2013, when she will take over her new role.
  • Denmark has amended its FOI law to absolutely exempt the disclosure of correspondence between ministers and the civil service, if the minister is requesting advice. Ministerial calendars have also been made exempt.
  • The Central Information Commission of India has ruled that political parties in India are covered by FOI law, because of the amount of public money they receive.
  • Both the House and Senate in Australia have passed legislation to exempt themselves from the FOI Act.

Contact Us
Rosemary Agnew and her team 2012
The Commissioner's 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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