News and Commentary from the Scottish Information Commissioner

News & commentary from the Scottish Information Commissioner

September/October 2008


In this month's Inform I introduce my new programme of research into civil society's use of FOI laws and provide details of Holyrood's FOI conference 2008, to be held in December this year.

Kevin Dunion

Civil society research

In the almost four years since Scotland's FOI Act came into force it has been actively used by a wide range of individuals and organisations, including members of the public, politicians and the media. Information has been requested and received on subjects ranging from potential sites for nuclear power stations to public authority procurement processes.

In contrast to this, however, there seems to have been a surprisingly low level of engagement with FOI by Scotland's third sector. Indeed, campaign and voluntary organisations accounted for only 4% of the appeals to me in 2007, compared to 7% from politicians and 77% from the public. This is surprising because it was widely anticipated prior to 2005 that FOI would be a valuable and effective tool for the sector, allowing it to access and then use the information held by public authorities to pursue their own agendas.

We know from the limited number of cases to be brought to me that FOI can be of real benefit to the sector, but we do not know why the proportion of cases brought is so low. It may simply be, for example, that there is a lack of awareness within the sector of how FOI works and the uses to which it may be put. Alternatively it may be that information is being accessed through other routes, using established information-sharing relationships instead, or that voluntary organisations always receive all the information they request, first time, without having to appeal to me. Some within the sector have even expressed concern that the use of FOI might be viewed as 'confrontational' by authorities, leading to fears that its use will jeopardise existing relationships - funding or otherwise.

Whatever the reason, it is my hope that a new research study will uncover the true extent of civil society's interaction with FOI, while also identifying and examining any perceived barriers to its use. The study, 'Public Communication, Democracy and Citizenship: Assessing Civil Society Uptake of Freedom of Information', is supported by my office and the European Social Research Council and will be carried out over three years by Kate Spence, a postgraduate researcher with the University of Strathclyde.

Kate Spence Photograph  Kate Spence

The research was launched in Glasgow on 30 September, at an event hosted by the University of Strathclyde and supported by the Campaign for Freedom of Information and my office.

Holyrood Conference
Image of Conference badge

The 6th annual Holyrood FOI conference, 'Extending the Right to Information' will be held on 10 December 2008. It will explore the opportunities highlighted by a possible extension of FOI designation, and provide practical guidance for authorities who may potentially come under its scope.

The conference will also offer insight for anyone affected by access to information law. In particular, the conference will address in detail the role of the EIRs in enhancing the public's access to information and whether these can be utilised more effectively. It will also consider which types of organisation are likely to fall under, the scope of the regulations.

Bruce Crawford, the Minister with responsibility for FOI in Scotland, will deliver a keynote speech in which he will both outline what the Government is doing to ensure that the principles of FOI continue to be applied by the public sector in Scotland and set out the initiatives currently underway to extend the public's right to information. I will be joining the Minister on the platform to set out what I see as the key developments in upholding FOI rights and ensuring good practice.

Sir Ken Collins, former chair of SEPA, and former chair of the European Parliament Environment Committee, will speak about the origins, objectives and implications of the Environmental Information Regulations on Scottish public organisations. I am also keen to hear the experience of utilising FOI law from Heather Brooke, the campaigner at the heart of the MPs' expenses story at the beginning of the year, and author of "Your Right to Know". Heather will also take part in a discussion with a panel of experts on the future of FOI from both Scottish and global perspectives.

Previous conferences have proved to be invaluable in the development of thought and practice on access to information legislation. This conference is clearly set to continue in that tradition. The conference will be held on Wednesday 10 December 2008 at the Sheraton Hotel, Edinburgh. To register for the conference, please go to Holyrood Conference 2008 .

At a glance July and August 2008
 New applications received  70
 Enquiries responded to  229
 Cases closed  74
 Decisions issued  32
Key decisions issued
Files flying out of a cabinet

Decision 104/2008

Streetwork and Glasgow City Council

In this decision, I ordered Glasgow City Council to release details of the successful bid for its Street Outreach Service for the homeless. I required the bid, jointly made by the charities Glasgow Simon Community and Barnardo's, to be released in full. In my decision I clarified that I did not accept that disclosure of the bid would damage the commercial interests of the bidders or reveal a trade secret.

I found that much of the withheld information simply described the service to be offered, while any financial information was specific to the particular service in question and would therefore be unlikely to assist a competitor in any future tendering process. I also did not accept Glasgow City Council's claim that the tender document constituted a trade secret. I found nothing unique or secret about the tender and noted that the manner in which the service was provided would be visible to anyone coming into contact with it and so ordered it to be disclosed.

Decision 079/2008

Mr Gallacher and the City of Edinburgh Council

Mr Gallacher had requested written evidence of negotiations relating to the purchase of land occupied by Meadowbank Stadium from the City of Edinburgh Council. The Council released some information to Mr Gallacher, but withheld the remainder as it deemed it to be commercially sensitive. During the investigation, I discovered that further information relating to Mr Gallacher's request was held by the Council, but I remained surprised that so little information was held by it in relation to such an important land purchase. In the decision I criticised the Council for failing to adequately search its records before responding to Mr Gallacher, and I did not conclude that the information which was withheld was commercially sensitive. As a result, I required the Council to release some of the remaining withheld information to Mr Gallacher. Audit Scotland has been made aware of my decision, and is looking at the processes and procedures of recording land transactions in the City of Edinburgh Council.

Decision 074/2008

Mr Emslie and Communities Scotland

The FOI Act allows public authorities to refuse to respond to requests for information which are found to be vexatious, and my decision in relation to this application is one of a small number which has discussed whether that is the case.

The FOI Act sets out that if it would cost over ?600 for a public authority to respond to a request for information, then that authority is not obliged to respond. Mr Emslie made it clear in his submissions to me that he intended to request a large amount of information from Communities Scotland, and he suspected that to do so through one request for information would bring the cost of responding to the request to over ?600. In order to avoid this, he made a large number of information requests to Communities Scotland, where each request asked for the same data for a different year.

Although FOI law does not limit the number of requests which can be made by one person, in the decision I explain that this does not, however, mean that applicants can make unlimited requests to an authority. The number of requests made by Mr Emslie to Communities Scotland and the fact the information had, in the main, already been provided to him by Communities Scotland in response to previous requests, led me to conclude that his requests were vexatious.


The full text of all decisions issued under Scotland's FOI legislation can be viewed on my website.

News in brief

Pile of Newspapers

Survey of health and education sector authorities

Statistics gathered by my office over the last year have shown that different sectors of public authorities experience very different levels of requests. While local and national government and police forces receive high volumes of requests for information, numbers of requests made to the health and education sectors seem to be relatively low. To explore this phenomenon in more detail, I surveyed authorities within those sectors in August, to gather evidence about the number and types of requests for information which they do receive. I have commissioned a research company to carry out in-depth telephone interviews with a sample of the authorities in order to explore the results in more detail. The results will be published and discussed at a seminar later in the year.

Public awareness research

October will see the field work carried out for the fifth wave of my annual public awareness research, which examines how awareness of, and attitudes to, FOI in Scotland are changing over time. The previous research reports can be viewed on my website.

FOI : What's different about Scotland?

I recently spoke at a seminar hosted by University College London for FOI professionals, academics and lawyers on the differences between Scottish and UK FOI law. My presentation expanded on my views on the differing levels of appeals made to myself and my UK counterpart, and on the impact of a new administration on access to information regimes. The event was one of a Government Information Policy Seminar Series, hosted by the University, in conjunction with the Constitution Unit.

Third European Conference of Information Commissioners

In October I attended the Third European Conference of Information Commissioners, to be held in Slovenia, and hosted by the Slovenian Information Commissioner, Natasa Pirc Musar. The Conference discussed the Council of Europe's adoption of the European Convention on Access to Official Documents and how the draft convention should employ the best legislative practice taken from member states. The Conference also sought to find common themes and key differences in the practice of access to information law, and to discuss the best way to disseminate knowledge and experience gathered by the Commissioners to European countries without strong access to information regimes.

New appointments

I am delighted to welcome Andrew Phillips and Elaine Moffat to my team. Andrew's background is as a solicitor in the legal department of SEPA, and Elaine comes to us after spending time as a FOI officer in Fife Council. Both started work as Investigating Officers in my Office on 1 September.

Seminar for newly designated bodies

In September my staff held a seminar for 9 organisations newly designated under FOI law. The seminar covered information about how to respond to requests made by the public, what to expect if an application is made to me, examples of good practice, and advice on drafting publication schemes.

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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