News and Commentary from the Scottish Information Commissioner

News & Commentary from the Scottish Information Commissioner

September/October 2009


Published in the same week as International Right to Know Day (28 September 2009), this edition reports on my latest communication with Ministers on extending FOISA, and Scotland's contribution to a new international assessment standard.  News too of Holyrood's 7th Annual FOI conference, which I know many Inform readers will want to attend.

Kevin Dunion

Commissioner's commentary

Since the Scottish Government launched its discussion over the extension of FOISA to cover a wider range of bodies last December, the issue remains very much alive in Scotland.  My submission to that discussion in January 2009 made clear my own view that FOISA should be extended to cover Registered Social Landlords (RSLs), third party contractors such as PPP/PFI contracts, and local authority trusts such as leisure trusts.

Since the Government's discussion exercise closed in January, there have been new developments which have, in my view, strengthened the case for designating new bodies under FOISA.  In June, the English Court of Appeal found that an RSL was subject to the Human Rights Act (the HRA), finding that its role in allocating, managing and terminating social housing was a public function to which the HRA applied.  In coming to its decision, the Court considered a range of factors, similar to those I set out in my submission to the Scottish Government e.g. extent of public funding, exercise of statutory powers, whether they were taking the place of local authorities, or providing a public service.  Critically, the Court found it was the cumulative effect of these factors which, taken together, establish sufficient public flavour to bring the provision of social housing within the concept of a public function.  I have written to the Minister to share with him my view that the reasoning and conclusions in this case are highly persuasive, and that these serve to strengthen the case for extending FOISA to cover RSLs.

 In July 2009, the Ministry of Justice published a response to its consultation into the extension of the Freedom of Information Act in England and Wales, making a commitment to extend coverage to four new categories - academy schools, the Association of Chief Police Officers (ACPO), the Financial Ombudsman Service and the Universities and Colleges Admission Service (UCAS).  This announcement was met with disappointment by many, who had hoped for more.  There has also been concern about plans down south to introduce absolute exemptions for all Cabinet Papers and communications with the Royal Household.  I share the view that these are retrograde steps, and am glad that nothing of this nature has been contemplated in Scotland.  There is clearly the possibility now of further divergence between Scotland and the rest of the UK regarding FOI.  We could end up with more rights to information from existing authorities as well as a wider range of bodies brought within the scope of FOI.  The whole point of having devolution and separate legislation was to feel unconstrained by such differences. 

I look forward with great anticipation to the Government's response to its own discussion exercise, and to helping to take matters forward.

Kevin Dunion's Signature

Kevin Dunion, Scottish Information Commissioner

International Assessment Tool
photo of Carter Centre

During August, I took part in a critically important international workshop to undertake preparatory work for the development of an international Implementation Assessment Tool to enable the performance and practice of FOI regimes across the globe to be assessed.

The work is part of the Carter Center's commitment to advancing the right to access information, as set out in its 'Atlanta Declaration', of which I was a signatory, in February 2008.  The Center was founded by former US president Jimmy Carter and his wife Rosalynn, to advance human rights and alleviate unnecessary human suffering.  It is behind a number of international anti-corruption and transparency initiatives.

Other participants included the Mexican Information Commissioner and information governance experts from the USA and South Africa.  We focused on how to come up with meaningful tools which will allow assessment of FOI practice without rewarding countries which have implemented unambitious or very restricted FOI regimes - or those with ambitious legislation that has been poorly implemented.  We were also mindful of the political, financial and cultural diversity of nations implementing FOI legislation ? we are not looking to imposing prescriptive and inflexible standards - but equally we do not wish to permit this to excuse basic failings.  In that respect, the workshop was trying to answer, in part, which countries have good (or the best) FOI regimes.

Following initial design, there will be series of pilot country studies before finalising the tool.  I welcome the opportunity for Scotland to be involved in such a globally significant project ? it is both a testament to the success of our FOI regime, and an opportunity to learn lessons we can apply at home.

At a glance - July and August 2009
 New applications received: 62 
 Enquiries responded to: 243
 Cases closed - Decision Notice: 33
 Cases otherwise closed: 40
Key decisions issued
Image of filing Cabinet with documents flying out of it

PFI/PPP contracts ? financial models

Financial models are an essential part of PFI contracts ? they set out detailed financial projections and profit margins for each contract, including projected expenditure and income.  While it is increasingly common to see PFI contracts being put into the public domain, it is rare for financial models to be disclosed.  The Commissioner issued his first ever decision on financial models in August - Decision 104/2009 Unison and Scottish Prison Service.

This involved a request by Unison for the PFI contract for the privately-run Kilmarnock Prison.  The SPS published information about the contract on its website, but withheld the financial model on the basis that it was exempt under section 33(1)(b) of the Freedom of Information (Scotland) Act 2002.  It argued that disclosing the financial model would prejudice substantially the commercial interests of Serco Group plc (Serco owns the company which runs the prison), as disclosure would reveal detailed information about how the contract price was calculated, to the advantage of Serco's competitors.

However, the Commissioner disagreed that disclosing the model would cause such harm to Serco.  He noted that the model was 10 years old and that the PFI regime had matured and changed considerably since the financial model was finalised.  He also took account of the fact that the financial model in question was a hard copy of the model, which meant that it could not be examined for underlying calculations or formulae.

The Commissioner is investigating a number of other cases involving financial models, some of them much newer than the Serco model, and decisions on these cases will be published over the next couple of months.

Communications between councillors and officers

The Commissioner often has to consider the relationship between FOI and other Acts of Parliament or Codes of Practice.  In Decision 102/2009 Cllr David Alexander and Falkirk Council, he looked at how the Environmental Information (Scotland) Regulations 2004 interact with the Scottish Ministers' Code of Conduct for Councillors and, in particular, the Protocol for relations between councillors and employees of Scottish councils.

Cllr Alexander's request covered communications between councillors and individual officers.  The Council refused to disclose these on the basis that, under the exception in regulation 10(5)(d) of the EIRs, disclosure would prejudice substantially the confidentiality of council proceedings.  In order to rely on this exception, the Council had to show that the confidentiality was provided for by law and it submitted that the Protocol created a requirement of strict confidentiality between officers and councillors.

The Commissioner was not satisfied that the Code was capable of creating a legal obligation of confidentiality, given that it did not have the status of primary or secondary legislation but rather represented good practice.  However, he recognised that withholding officer/councillor communications may be justified in some circumstances under other exceptions in the EIRS, particularly where the information would reveal the internal deliberations of political groups within the Council.

News in brief
Pile of Newspapers

Forthcoming conferences?

The 7th Annual FOI Conference, organised by Holyrood Conferences, takes place on 8 December at the Roxburghe Hotel in Edinburgh.  The conference will examine how we maintain momentum in Scotland to make FOI a reality in the daily lives of citizens.  Delegates will hear from ministers past and present, with addresses from Bruce Crawford, Minister for Parliamentary Business, and Lord Wallace of Tankerness, the former Deputy First Minister who introduced Scotland's FOI Bill.  The programme includes a series of practical workshops for the first time.  The Commissioner will give his annual keynote speech and looks forward to meeting delegates from all walks of life - politicians, public authorities, voluntary organisations, or simply interested members of the public.  Book a place at

Holyrood Conferences are also holding their first Data Protection Conference, on 13 October 2009.  Speakers include (UK) Information Commissioner Christopher Graham.  Holyrood are offering a 20% discount when both the Data Protection and FOI Conferences are booked together ? go to

?and forthcoming seminars

Also, the autumn seminar series of the Centre for Freedom of Information kicked off with a successful seminar on FOI and Data Protection on 24 September.  Two further seminars are planned before Christmas:

Environmental Information - 22 October 2009 ? exploring issues around the access to environmental information in Scotland.  Featuring:

  • Dr Aine Ryall, University College, Cork - on the international origins of the right of access to environmental information;
  • Professor Colin Reid, University of Dundee - exploring the key differences between the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Followed by a panel discussion entitled Working with environmental information - looking at the handling of requests for environmental information. The panel will comprise Dr Aine Ryall; Professor Colin Reid; Scottish Information Commissioner Kevin Dunion; Emma Welsh, Solicitor, Glasgow City Council; Jennifer Ryles, Information Officer, Scottish Natural heritage; and Guy Linley-Adams, Solicitor (and regular user of the EIRs), Fish Legal.

Policing and the Public Interest - 26 November 2009 - with David Goldberg, Donald Thompson and Alistair Graham.

Email, to reserve your place (early booking is advised).

The Public Services Reform (Scotland) Bill

The Commissioner has called for his post to be removed from the list of bodies covered by the Public Services Reform (Scotland) Bill.  In evidence to the Parliament's Finance Committee, which is scrutinising the Bill he argues that it is inappropriate for the Government to be given powers to abolish, merge or direct an independent body appointed by Parliament.

This Bill is concerned with improving the landscape of Scottish public bodies, to deliver more effective, co-ordinated government.  The Commissioner's representations focus on the inclusion of his Office in Schedule 3 - the list of bodies which would be subject to 'order-making powers' set out in the Bill.  These powers would allow ministers to introduce orders which could amend the constitution of a body, create or abolish an office-holder, or amend or transfer the functions of an office-holder.  The order-making powers in the PSR Bill could fundamentally affect the independence of the Commissioner's role, and this independence lies at the heart of Scotland's FOI regime.  Effecting such change by secondary legislation was not Parliament's intent when the FOI Bill was enacted.

The Commissioner does not wish to exempt his Office from scrutiny or change - but argues that such scrutiny is best achieved through other legislation being proposed following the review of bodies supported by the Scottish Parliamentary Corporate Body, earlier in 2009.  The Commissioner's written response is available from his website here.

Other news

The Commissioner is pleased to hear that the Scottish Government plans to produce a single Code of Practice on the operation of both the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

The Commissioner welcomed Christopher Graham new (UK) Information Commissioner to his Office for the first time when the two offices met for their regular biannual meeting on 16 September.

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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