News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner

May/June 2008

This edition of Inform focuses on my strategic plan for 2008-2012.  The plan lays out my vision for FOI in Scotland over the final four years of my tenure as Commissioner.  I provide an update on other recent developments in my Office, and pay tribute to a valued colleague, Andrew Campbell, who passed away in March.
Head and shoulder Image of Kevin Dunion

A Really Open Scotland

In my first term, my strategic focus was on preparing authorities for their new responsibilities, informing the public of their new rights and then dealing with the large volume of appeals which I received. As I signalled in my recent Annual Report 2007, I sense the opportunity and need to shift the emphasis in my second term, and I have now drawn up a Strategic plan 2008-2012 which indicates my approach. The Strategic Aims are set out below. Investigating appeals will continue to be a key priority and, for applications received from April 2008, I want cases to be closed within 6 months on average ? with no case taking longer than 11 months. However, I am also devoting additional resources to checking compliance by public authorities outwith case investigations. I want to look at the track record of individual sectors and specific authorities, to see if there are chronic or repeated failings which could be addressed through an agreed action plan, or, failing that, by using my power to issue a recommendation as to good practice.

I will also be devoting more resources to improving the capacity of authorities and civic society to keep up to date with good practice and current thinking on interpreting freedom of information laws, by publishing handbooks, organising training events and conducting research. Across Scotland considerable investment went into staff training before the legislation came into force in 2005, but much of this addressed how the Act might work in practice. After 3 years and more than 600 decisions I want to refresh current thinking. This is particularly important if new public authorities are to be designated within the next four years. The changing ways in which public services are delivered has, I believe, led to strong arguments for designation, and I intend to help newly-designated authorities fully prepare for their new responsibilities.

Strategic Aim 1: Case Closures and Length of Investigations - Applications have levelled out (projected at c450 for 08/09) but are expected to upturn in the period. Investigative capacity will be used to significantly reduce the journey time to closure.

Strategic Aim 2: Compliance - Investigate the practice of public authorities and identify measures to improve compliance.

Strategic Aim 3: Awareness - Target sectors of society to ensure that they are aware of their rights and the potential use of FOISA/EIRs.

Strategic Aim 4: Practice - Build knowledge of and promote good practice through research, publication scheme approvals and a reference group of key specialists.

Strategic Aim 5: Development - Identify beneficial changes to legislation, regulation and codes (e.g. designation). Address areas of uncertainty over the application of the legislation.

Strategic Aim 6: Reference - Bring together our experience and approach in  publications, drawing upon our interpretation of law, international comparisons, platform decisions, legal advice, court cases, and evidence of good and bad practice.

My Strategic Plan 2008-12 and Operational Plan 2008-9 are available on my website here: Strategic and operational plans

In Memoriam
Photo of Andrew Campbell

Freedom of Information Officer Andrew Campbell sadly passed away on 14 March 2008, at the age of 36, after a short illness. Husband to Pam and father to three boisterous small boys (Noah, Magnus and Harris), Andrew was a popular and highly valued member of my team. He is sorely missed by all of us. In his memory my staff are undertaking fundraising activities to support the creation of new adult literacy teaching posts in Africa, as Andrew taught adult literacy in his spare time.

House of Lords - CSA v. the Scottish Information Commissioner  
Image of House of Commons

On 1 and 2 April the House of Lords heard the appeal by the Common Services Agency against my decision to order release of childhood leukaemia statistics in Dumfries and Galloway (021/2005 Mr Michael Collie and the Common Services Agency for the Scottish Health Service). A judgement is expected later in the summer, and a more detailed report will appear in a future edition of Inform. The Lords' ruling is likely to deal with the interaction between the public's 'right to know' under FOI legislation, and the legitimate privacy interests of affected individuals under data protection legislation. My briefing on the section 38 'personal information' exemption will be updated to take account of the Lords' judgement.

Environmental Information Flowchart
Image of water flowing over stones

In the Jan/Feb edition of Inform, I considered the relationship between the FOI Act and the Environmental Information (Scotland) Regulations (the EIRs) and promised further guidance during 2008 on the handling of requests for environmental information. In April, I published an 'Environmental Information Process Flowchart' giving step by step assistance for public authorities when dealing with written requests for environmental information. The flowchart sets out the process that authorities should follow when they receive a request for environmental information, and provides guidance on how the relationship between the EIRs and FOISA should be managed.

Key decisions issued
Image of filing Cabinet with documents flying out of it

 Decision 025/2008 - George Gebbie and Scottish Legal Aid Board

The Legal Aid (Scotland) Act 1986 prohibits the Scottish Legal Aid Board (SLAB) from disclosing information it has received 'for the purposes of the 1986 Act' without the consent of the individual who provided it to SLAB - in fact, it is a criminal offence for SLAB to provide me with such information without this consent. In past cases involving SLAB, I have been able to come to a decision without viewing the actual information which has been withheld. In Mr Gebbie's case, the applicant had asked for details of bonus payments made to staff. SLAB initially refused to let me see the information on the basis that it would be a criminal offence. However, the authority subsequently accepted my arguments that information about bonus payments was not information which they had received 'for the purposes of the 1986 Act', and supplied the information. Legislation is currently going through the Scottish Parliament to allow SLAB to provide me with information for the purposes of my investigations.

Decision 030/2008 - Mark Nixon and Glasgow City Council

Mr Nixon asked the Council for information about the review it was carrying out in relation to pay and benefits. The Council withheld information on the basis that it was exempt, because it was due for future publication. While it was clear that the Council intended to publish the information at some point in the future, it was not able to satisfy me that the information was being held with a view to being published at a date not later than 12 weeks after the information request, and I therefore ordered release.

Decision 052/2008- Stuart Nicholson and the Scottish Ministers

In this decision I looked at whether information shared between the Scottish Government and the Scotland Office falls within the definition of 'internal communications' in the EIRs. While I concluded that in some circumstances communications between the two could be 'internal', in this case the communications were not so. Mr Nicholson had sought copies of correspondence on the possible siting of new nuclear power stations in Scotland. The Ministers referred to the Aarhus Implementation Guide, which states that a public authority may refuse to disclose internal communications where national law or customary practice exempts the information from disclosure. However, as the Government was unable to highlight particular aspects of the administrative and legal relationship between the two parties in relation to this information, I concluded that the communications were not internal.

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 - March and April 2008
New applications received: 76
Enquiries responded to: 239
Cases closed: 56
Decisions issued: 21
News in brief

MoA with Scottish Government

In May, the Scottish Government and I signed a Memorandum of Agreement (MoA) setting out what each expects from the other during investigations. This is the first such agreement in Scotland and I will be approaching other public authorities who, like the Government, are involved in large numbers of appeals to my Office, with a view to entering into similar agreements. The MoA sets out a formal commitment by both parties to observe best practice when participating in investigations. The MoA with the Scottish Government came into effect on 12 May, is available on my website here.

Media training

From time to time I provide training on FOI for journalists, to encourage responsible and informed use of the Act by the media, and to help me gain an insight into the challenges journalists face using the legislation on a daily basis. On 24 April, my staff ran two such sessions for the Press and Journal and the Aberdeen Evening Express, both of which are regular users of FOI legislation. Issues covered included tips on how journalists can make effective FOI requests, and the importance of building good relationships with public authorities. Requests for media training can be made using the contact details below.

Talking about FOI

I take my duty to promote FOI very seriously, and am often invited to share my views on FOI in Scotland, with a range of diverse audiences. On 16 April I addressed a HBJ Gateley Wareing seminar entitled 'Freedom of Information - Success, failure, or is the jury still out?'. I shared my concerns about the need to preserve FOI rights in Scotland when the way in which public services are delivered is so rapidly changing. In May, I addressed the Irish Commissioner's Conference in Dublin, when I focused on how police forces in Scotland have embraced FOI legislation. I will also be addressing a European Parliament hearing on access to documents in Brussels at the beginning of June. Invitations to speaking engagements can be made to my Office using the contact details below.

New exemption briefings

Since the last issue of Inform in March, a further 17 updated exemption briefings have been published on my website, including my first ever briefing on the 'prejudice to the effective conduct of public affairs' exemption and an updated commercial interests briefing. The refreshed briefings draw on more than 600 decisions issued since January 2005 to show how the FOI exemptions have been working in practice. They are designed to offer 'plain English' accessible explanations of the exemptions for public authorities, requesters and other interested parties. The new briefing series also considers the application of the EIR exceptions.  The full range of available briefings can be accessed at: Briefings and guidance

ESRC PhD Studentship

I am pleased to announce that the Department of Geography and Sociology at the University of Strathclyde, has, in partnership with my Office, been awarded an ESRC Collaborative Doctoral Studentship to explore civil society's interaction with freedom of information legislation. The award will run for three years from 2008-2011, and recruitment of the student is currently underway. Further details are available from the Strathclyde University Sociology Dept website, or from my own website.

Photograph of Commissioner's staff

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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