News and Commentary from the Scottish Information Commissioner

News and Commentary from the Scottish Information Commissioner

May/June 2010

Commissioner's Commentary
Kevin Dunion

This month I publish my Operational Plan for 2010-2011. The plan sets out my key priorities over the course of the coming year, each of which are designed to work towards the fulfilment of the six objectives set out in my strategic plan for 2008-2012. Through these measures, and over the course of the year, I intend to improve the performance of individual public bodies, increase awareness of freedom of information, and work to ensure that Scotland's FOI rights are protected into the future.

Improving performance

Throughout the next year my team will undertake a number of measures to ensure that the performance of public bodies is improved - both in terms of the FOI performance of all those covered by the legislation, and the efficiency and effectiveness of my own Office.

  • Assessment - Over the last 18 months my team has developed a  to examine and enhance the FOI performance of public bodies, with 13 good practice assessments completed during this first phase. For 2010-2011, I have established a small Assessment Team to further develop this programme. This team will undertake 12 new assessments over the coming year, working with authorities to both identify good practice, and develop achievable action plans where problems are identified.
  • Professional Development - We will also be continuing to support the development of the Centre for Freedom of Information, the partnership project between my Office and the University of Dundee's School of Law, which aims to create a space to reflect on and discuss FOI issues and practice. Throughout 2010-2011 the Centre will deliver a number of practical seminars on a range of topics, allowing public authorities and other stakeholders to explore key issues and work together to develop best practice in FOI.
  • Guidance - I am currently preparing an extensive guide to Scotland's FOI legislation which will act as an essential resource for public authorities and others when working with FOI. I plan to publish this material in the form of a practical handbook in the Autumn of 2011.
  • Case Closure - As far as my own office is concerned, I have set an ambitious target of further reducing the time taken to investigate and close the FOI appeals brought to me. The swift resolution of appeals is an essential component of an effective FOI regime, and this new target aims to reduce the average closure time to 5 months, a further reduction from the 6 month average that was set and achieved during 2009-2010.
  • Efficiency review - My team will be working to streamline our approach to the scrutiny and approval of public authority publication schemes, and will also undertake a comprehensive review of our resources and strategic objectives, in order to ensure that we can operate as efficiently and effectively as possible within the challenging financial landscape.

Increasing awareness

Work to ensure that all sectors of society are aware of their FOI rights will continue over the year, with a specific focus on raising the awareness of the Act among voluntary sector, campaign and community organisations - i.e. those groups who both represent particular members of the public, and advise them of their rights. This work will continue through the  we have established with the University of Strathclyde, and will be supported by the delivery of awareness-raising sessions to key groups.

Alongside this, we plan to support Consumer Focus Scotland in the development of research to investigate the impact of FOI on consumers across Scotland, in order to explore the extent to which individual consumers are making use of FOI, establishing what, if any, barriers exist to the submission of information requests. These findings will inform the development of our information and resources, in order to ensure that they are as effective as possible in meeting the FOI needs of the public.

Protecting rights

Finally, we will continue our work to ensure that Scotland's FOI rights are protected into the future, by supporting the Scottish Government as it consults on the designation of a range of bodies, including Glasgow Housing Association, ACPOS, arms-length leisure trusts and companies that are contracted to deliver major public projects. Following designation, we will work to support and advise these new bodies as they prepare to implement FOI within their own organisations.

We will also seek to promote the importance of an ongoing review of those bodies covered by FOI, in order to ensure that the FOI right can continue to be exercised appropriately and effectively into the future.

Full details of both my operational and strategic plans are available on the strategic plan page of my website.

Kevin Dunion's Signature

Kevin Dunion
Scottish Information Commissioner

At a glance - March and April 2010
 New applications received:  73
 Enquiries responded to:  386
 Cases closed - Decision Notice:  34
 Cases otherwise closed:  29
Key decisions issued
Files flying out of a cabinet

Means of providing information

Under Scotland's FOI Act, requesters are able to express a preference as to how they would like to receive information. The Act sets out that requesters can ask to either be provided with a copy of the information, a digest or summary, or they can ask to inspect it. Where such a request is made the authority should comply - providing it is reasonable to do so.

In Decision 048/2010 Mr Tom McPherson and Glasgow City Council - the Commissioner considered this right in detail for the first time. Mr McPherson wanted to inspect fragile cemetery records held by the Council, and to take digital copies of the records while he was inspecting them.

Following his consideration of the case, the Commissioner decided that it would be unreasonable to expect the Council to allow this, given the time it would take to digitise the records, and the need for a member of the Council's staff to be present while the copying was taking place - particularly given the fragile condition of the records. In coming to his decision, the Commissioner also took into account the fact that some of the information was likely to be personal data and exempt from disclosure.

Developing policy

A recent decision - Decision 056/2010 Mr William Lonsdale and the Scottish Further and Higher Education Funding Council - signals a change in the Commissioner's approach to the FOI Act's 'legal professional privilege' exemption. This exemption, contained in section 36(1) of the Act, ensures that information which is subject to legal professional privilege will be exempt from disclosure. The exemption will cover the majority of legal advice.

In a small number of previous cases, the Commissioner has applied the 'cherry picking' rule to the disclosure of such advice. This 'cherry picking' rule  is designed to stop those involved in court proceedings from disclosing legal advice which supports their position, while withholding advice which does not support it. The rule therefore means that the whole of the advice, good and bad, must be disclosed to the opposing party. In previous cases, where some aspects of legal advice had been disclosed into the public domain, the Commissioner had ruled that the advice in full should be disclosed.

Having reviewed this matter, however, the Commissioner no longer considers that this rule will apply to most requests under FOISA and, so, will not normally order a public authority to disclose legal advice in its entirety where it has already disclosed parts of that advice.

However, it is important to note that the legal professional privilege exemption is subject to a public interest test. Where the Commissioner considers that a public authority has misled the public as to the legal advice it has received (e.g. by disclosing the parts of the advice supporting its position while withholding the parts which don't support it), the Commissioner is likely to order the advice to be disclosed in its entirety, on the basis that release would be in the public interest.

News in brief
Pile of Newspapers

Upcoming conference

The Commissioner is speaking at a one day conference in Edinburgh on 18 June 2010. The conference, organised by MacKay Hannah, is entitled 'How can public authorities meet their FOI obligations economically, efficiently and effectively?'

The conference will explore how public authorities can learn from good practice in Scotland and elsewhere, in tacking the challenges and realising the benefits that FOI can bring. The Commissioner will share his thoughts on the critical factors for success, while also providing an update on the progress of the practice assessment work he has been undertaking across Scotland. Representatives from a range of public sector bodies will also share their own experiences of the impact of FOI, and Dr Elizabeth Shepherd from University College London will discuss ways in which the administrative burden of FOI compliance can be reduced. 

Further details of the conference can be found on MacKay Hannah's website.

New look website

Following an online survey last year, we have redesigned the homepage of our website to give users quicker and clearer access to the most popular content on the site i.e. decisions, guidance on applying exemptions, news from the Office and details of FOI rights. In addition, there are now a number of news feeds which users can sign up to, more interactive content, improved resources for the media, and information on FOI rights in ten community languages.

The Commissioner is committed to continually improving the website and welcomes any suggestions from Inform readers on how this could be achieved.

Overseas visits

In recent weeks the Commissioner and his team have played host to a number of international visitors. At the end of March Professor Dan Metcalfe visited the Commissioner's Office to talk to staff about his 25 years experience guiding US federal agencies on the appropriate administration of the FOI Act. As part of a visit set up by the Commissioner's team, Professor Metcalfe also spoke with staff at the Scottish Government, and at a Centre of FOI seminar in Edinburgh.

The Commissioner's team also hosted fact-finding visits from the first Information Commissioner of the Cayman Islands, Jennifer Dilbert, who was particularly interested to learn about the investigations process in Scotland, and from Margaret Thompson of the New Zealand Law Commission, who was seeking to learn from the Scottish experience as part of a review of New Zealand's 28-year-old FOI legislation.

Recent events and engagements

On 7 May the Commissioner addressed the Conference on the Right of Access to Information in Stockholm, an international event bringing together FOI experts from a range of countries, including the US, South Africa, Germany, Israel and Mexico. Kevin spoke to the conference about authority concerns around the harm that may result from the FOI disclosure of information, and explored the extent to which this fear was justified, drawing on practical examples from his FOI decisions.

On 10 May Kevin also participated in a workshop session at the University College London's Constitution Unit, to explore the development of stronger links internationally between FOI practitioners and academic institutions.

Other speaking engagements undertaken by the Commissioner's staff in recent weeks have included workshops at the Enable Scotland Conference, providing those with learning difficulties, their carers and those who support them with information on FOI and how it might be used effectively.

Contact us
Photo 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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