News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner
November / December 2008

In this edition I welcome the Scottish Government's discussion paper on extending the scope of the FOI legislation to cover third party organisations that provide services on behalf of public authorities.
Kevin Dunion

Commissioner's Commentary

In recent years the face of the public sector in Scotland has changed markedly. Many services which were previously delivered by Scottish public authorities are increasingly the responsibility of other bodies, including private companies, charities, housing associations and arms-length trusts. Alongside this, however, there is growing concern that the changing face of the public sector is leading to an erosion of the Scottish public's newly-forged FOI rights.

As services and resources are transferred to third parties, so the legal rights that the public has to information relating to those services can be lost at a stroke. Such actions can lead to substantial inequalities in access to information provisions, and a loss of rights to essential information on the spending of public money, the stewardship of public assets, and the performance of public services. While it is true that certain information may be passed to the parent authority, the reality is that much of the information on the day-to-day running of the service ? that is, the information which service users will commonly want to see ? will be held only by the third party. Customers, employees, politicians and taxpayers will no longer have legal rights to that information.

These concerns are not confined to Scotland. The Australian FOI community is currently exploring ways in which to preserve long-established FOI rights in a comparably changing landscape, while I recently spoke with Suzanne Legault, the Assistant Canadian Information Commissioner, about the impact of arms-length public service provision on freedom of information rights there.

In Scotland, the pace of change is rapid. Since 2001, the share of Scotland's social housing provided by housing associations (as opposed to local authorities) has more than doubled, from 20% in 2001 to 43% in 2007. In addition, there are now over 100 active public-private partnership (PPP) projects in Scotland with a combined capital value of approximately ?5,000 million. Through these partnerships the private sector delivers a wide range of public services, from administering and maintaining schools and hospitals to running entire prisons.

Approximately 60% of the Scottish population now also lives in an area where leisure and recreational services are delivered by arms-length trusts in place of local authorities. This latter case is unusual, in that local authorities can, if they wish, establish arms-length trusts in such a way that they are automatically covered by the FOI right, without the need for formal designation by the Scottish Ministers. However, this currently appears to be the exception, rather than the norm, and most will fall outwith the scope of FOI.

It is with these considerations in mind that I welcome the publication on 17 November by the Scottish Government of a discussion paper aimed at gathering views on extending the FOI right to cover third parties charged with the delivery of public services. The discussion paper follows my dialogue on this matter with Bruce Crawford, the Minister for Parliamentary Business, and the paper sets out the Scottish Government's preliminary assessment of the issues, and invites responses from all interested parties.

I plan to publish my response to the paper on my website early next year. In preparing my response, I aim to meet with representatives from a wide range of stakeholder organisations in order to debate and explore both the opportunities and the impacts of FOI designation. Organisations will include Scottish Council for Voluntary Organisations, Edinburgh Leisure, the Campaign for Freedom of Information, Glasgow Housing Association and Audit Scotland.

The designation debate will also be a key focus of December's 6th annual FOI conference in Edinburgh, and the issues which arise at the conference will similarly inform my response to the Government's discussion paper. I would, however, encourage all those with a view on the effect of the changing public sector landscape on Scotland's FOI rights to review the Government's paper and contribute to this important debate.

Kevin Dunion's Signature

Kevin Dunion
Scottish Information Commissioner


The Scottish Government's discussion paper can be downloaded from:

For further information on the 6th Annual FOI conference, go to:

At a glance - September and October 2008
 New applications received:


Cases closed: 


 Enquiries responded to:


 Decisions issued:


Key Decisions Issued
Files flying out of a cabinet

Decision 135/2008
Mr Euan Pearson and Fife Council

Mr Pearson had been refused a copy of the consultation response made by the Council's Housing Service in relation to a planning application. While the Council went on to agree to the release of the information during the course of my investigation, I nevertheless identified a number of shortcomings in the Council's handling of the case which I addressed in my decision. For example, I found that, while the Council had initially claimed that it did not hold some of the information, these claims were not justified. I also found that the Council had inappropriately claimed the exemption which permits information to be withheld where it is due to be published within 12 weeks of the request, given that the Council was unable to demonstrate that such a publication was planned.

Finally, I found that the Council had also inappropriately applied an FOI exemption which protects information where disclosure would prejudice the effective conduct of public affairs (section 30(b)(ii)). While I considered that the requested information would indeed have fallen within the scope of section 30(b)(ii), this exemption requires that a public interest test be considered before information is ultimately withheld. In this case, I found that the Council had failed to advance any appropriate argument that disclosure was contrary to the public interest, and that, given the general public interest in accountability and openness, it had therefore misapplied the section 30(b)(ii) exemption.

As the Council had released the information during the course of the investigation, however, I did not require it to take any remedial action.

Decision 116/2008
Andrew Montgomery and Glasgow City Council

Mr Montgomery requested a copy of the Council's statements of reasons in relation to two cases which involved the refusal of a licence application for a house in multiple occupation.

In its submissions to me, the Council asserted that the information was exempt under the FOI exemption covering court records (section 37(1)(a)(i)). This exemption applies to information contained within a document that has been lodged with a court for the purposes of proceedings and which the Scottish public authority holds solely because it is contained in that document.

While the statements in question had been lodged in court for the purposes of an appeal, I could not accept that the Council held the information solely because it was contained in that document. In this case, the Council had a duty to prepare the statements without knowing whether the case would ever be appealed to the court. I therefore found that the section 37(1)(a)(i) exemption could not apply and required the Council to release the information.

Decision 130/2008
Mr Tom Gordon and the Scottish Ministers

Mr Gordon's request for information relating to the draft Referendum (Scotland) Bill annexed to the White Paper 'Choosing Scotland's Future ? a National Conversation' was refused by Scottish Ministers under several FOI exemptions, including the exemption which protects information where it relates to the formulation or development of government policy (section 29(1)(a)). I accepted that the information related to the formulation of policy, and went on to consider the competing public interest arguments.

In this case, while I accepted that there was a degree of public interest in the disclosure of information which might lend insight into the formulation of a Referendum Bill, I identified a stronger public interest in withholding the information. In coming to this decision, I took account of the fact that the Scottish Government's 'National Conversation' was ongoing at the time of the request and, as a result, accepted that the disclosure of the information would have inhibited the development of policy options.

I therefore concluded that the information had been properly withheld by the Government.

News in Brief
Pile of Newspapers

Launch of Centre for FOI

I am pleased to announce the forthcoming launch of a new centre for freedom of information, to be based in Dundee. The Centre for FOI is a joint venture between the School of Law at the University of Dundee and my Office.

The Centre will provide:

  • Conceptual space to reflect on and discuss current FOI issues and practice;
  • A central point for the development of research into FOI issues, in particular modelling decision making and examining bureaucratic culture;
  • Access to expertise from specialists in constitutional and civil law, FOI practitioners and the Commissioner's office;
  • Opportunities to transfer knowledge and gain further learning.

The Centre will host a seminar programme in early 2009 and this will advise the development of a Research Programme. A Study Programme is also in development.

The launch will take place on Thursday 29 January 2009 between 1.00 and 4.00 pm in Dundee, and will feature keynote addresses from the Rt Hon Lord Wallace of Tankerness QC, along with the Centre's Co-Directors, Professor Alan Page, Dean of the School of Law, University of Dundee and myself.

Further seminars will be held on 26 March 2009 (Freedom of information in the devolved Scotland) and 28 May 2009 (Reflected glory? How does Scotland stand in the world of FOI?)

Participation in the seminars is free, but spaces are strictly limited. Register your interest by emailing your contact details to

Commissioner addresses voluntary sector

On 25 November I delivered the keynote lecture at the Scottish Council for Voluntary Organisations' (SCVO) AGM. My presentation, entitled 'Troublemakers or strategic partners ? how should the voluntary sector and the state interact?', drew upon my previous 20 year experience in the voluntary sector and the issues which arise from the relationships with public authorities which can be both critical and engaged. I explored in particular the issue of transparency and accountability and the potential consequences of the extension of freedom of information as more public services are delivered through the voluntary sector.

Annual FOI Conference

The 6th Annual FOI Conference, supported by my Office, will take place at the Sheraton Hotel on Wednesday 10 December. Speakers will include: Bruce Crawford, Minister for Parliamentary Business; Sir Ken Collins, former chair of SEPA; and Heather Brooke, the FOI campaigner whose request led to the release of Westminster MPs' expenses earlier this year. For further information and to book a place, visit


FOI Reference Group to hold first meeting

The first meeting of my new ad hoc FOI reference group will take place in Glasgow on Tuesday 2 December. I have invited a small number of key individuals whose work and interests are specifically relevant to current FOI issues. I am looking forward to debating and discussing those issues and hearing contributions from the group's very different perspectives. I expect that the discussions will advise the further development of my own strategic approach to my role. The first meeting will focus on the issue of widening the coverage of FOI to encompass more bodies. Future meetings will take place biannually.

Health and education seminar

Over the summer my office issued a questionnaire to 160 health and higher / further education authorities about the volume of information requests which they had received over the last financial year. The results of this survey then informed the commissioning of a qualitative study recently undertaken by Reid Howie Associates which explored the experience of authorities within those sectors in more detail.

The study will be published in December and will be followed with a seminar for the health and education sectors in early 2009.

International FOI Conference

I recently addressed the 2nd International Seminar on FOI organised by the Mexican Institute of Access to Public Information. Commissioners, Ombudsmen and FOI experts from as far afield as India, China and the United States attended the event to discuss the opportunities and obstacles affecting FOI internationally.

In my presentation I discussed the benefits brought by Scotland's rigorous enforcement regime, where establishment of the post of Commissioner has helped to ensure that the legislation has had an immediate impact on Scottish political and cultural life, something which would have been less likely had a less stringent approach to enforcement been taken. I also used the presentation to highlight the strong uptake of FOI rights by the Scottish public, and the high levels of general awareness of the legislation.

Further information on the November conference can be found at:

New appointment

I am delighted to welcome Avril Mills as a new addition to my investigative team. Avril joins me from the Office of the Scottish Charities Regulator, where she worked within the charities team, assessing whether to grant charitable status to applicant organisations. Avril started work with me on 3 November.

Contact Us
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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