News and Commentary from the Scottish Information Commissioner

Inform - News & Commentary from the Scottish Information Commissioner
September 2007

Commissioner's Commentary

Welcome to the September edition of Inform. September should see my office reach an important milestone, with the anticipated publication of my 500th decision under Scotland's freedom of information (FOI) legislation.

At the time of writing, I have issued a total of 485 formal decisions. This figure compares favourably with the 680 decisions issued by the UK Information Commissioner, particularly when you consider that, on a broadly pro-rata basis, we might expect activity under the UK legislation to be around ten times that under the Scottish Act.

This noteworthy milestone is set against a backdrop of a high public awareness of FOI rights and a preparedness to appeal to me if information is withheld.

Graph showing large number of appeals in Scotland, per head of population

As is well known, the volume of appeals I have received has been far higher than anticipated, with nearly twice as many appeals received in the first year of FOI than the highest projected figure. It is also the case that, on a pro-rata basis, the number of FOI applications to me in 2006 was double that received by my equivalent Commissioner south of the border.

Tackling these high numbers has been demanding, but I am proud of the way in which my office has met this challenge. I have set ambitious case clearance targets, with the result that I anticipate that the backlog of cases which had built up as a result of this high volume will be eradicated within the next six months.

The international context

FOI has also led to Scotland breaking new ground internationally. In 2005, for example, I required the release of detailed mortality data for Scottish surgeons, the first time that any such comprehensive data had been published anywhere in the world. It has recently been announced that similar data is to be published by the NHS in the UK, while, at the end of August, a US Court also ruled in favour of such a release.

Indeed, it seems that other countries are increasingly looking to Scotland as an example of good practice in implementing and enforcing FOI, with Latin American, Caribbean, African and Eastern European officials all contacting me to seek advice on their current, or proposed, FOI regimes.

A strong foundation

Looking back over the progress made since 1 January 2005 then, I consider that Scotland has much to be proud of in its response to FOI. The right to information has been keenly exercised by the Scottish public - who make up the vast majority of applicants - and the overwhelming majority of Scotland's public authorities have responded appropriately to the demands of FOI, often demonstrating real commitment to its principles. The next challenge facing Scotland's FOI community will be to move from a culture of FOI compliance to one of real openness. I believe, however, that we have built a strong foundation from which to meet that challenge.

Kevin Dunion
Scottish Information Commissioner

Relations with the UK
Scottish and UK flags

Relations within the UK

Scotland's FOI Act allows authorities to withhold information in circumstances where it is considered that disclosure would be likely to substantially harm relations between administrations in the United Kingdom.

When assessing the application of such an exemption, I am required to consider carefully the specific content of the material to which the exemption had been applied. The "relations within the UK" exemption contains within it a "harm test", meaning that, in order for the exemption to be appropriately applied, it must be demonstrated that there is likely to be real and significant harm to UK relations as a result of release. In a number of recent cases, I have found that the content of the information did not justify the application of this particular exemption.

In Decision 143/2007 - Mr Barry Winetrobe and the Scottish Executive, Mr Winetrobe sought information relating to the Sewel Convention - the constitutional convention which permits Westminster to legislate on devolved matters with the consent of the Scottish Parliament.

The Scottish Executive (as was) cited various exemptions within the FOI Act to support the non-disclosure of this information, with thirteen of the fifty-two documents considered to be exempt on the grounds of the "relations within the UK" exemption. Having considered their content, however, I took the view that the Executive had misapplied this exemption in relation to 9 of the 13 documents. I again found that much of the information contained within these documents was broadly factual, and that the passage of time had diminished its sensitivity, with the result that its release would not cause the level of harm required for the exemption to apply.

In another recent case, Decision 124/2007 ? Mr Mark Ruskell and the Scottish Executive, the Scottish Executive argued that information relating to proposed ship-to-ship oil transfers in the Firth of Forth was exempt from release. Two of the requested documents were withheld on the basis of the "relations within the UK" exemption.

On consideration of the material in question, I was unable to accept this conclusion. In relation to one document, the content was largely factual, and much of it had previously been supplied to Mr Ruskell. With regard to the second, while the correspondence did indeed contain candid comments, I saw no reason to conclude that their release would harm relations within the UK (It should be noted, however, that I separately concluded that these comments fell within the scope of another FOI exemption.) I therefore required that these two documents be released, with the single sentence containing the comment in question redacted.

In seeking to apply an exemption under the FOI Act, Scotland's public authorities will normally be required to fully consider the specific content of the information they seek to exempt. The Act contains very few circumstances where authorities are permitted to apply a "broad brush" approach to the application of exemptions, and such careful scrutiny will therefore be an almost inevitable requirement if an exemption is to be appropriately applied.
Key Decisions Issued
Image of filing Cabinet with documents flying out of it

Decision 155/2007 ? David Leslie and the Chief Constable of Northern Constabulary
Information relating to the death of William MacRae

Scotland's FOI legislation governs access to the information that authorities hold, with "information" defined in the Act as being "recorded in any form". This definition therefore extends beyond information stored in conventional written formats to encompass a much wider scope. Under FOI, material stored in the form of audio recordings, photographs and video footage may also be accessed.

Mr Leslie's request included a request for post-mortem photographs of Mr MacRae. This case led me to consider the issue of such photographs within the context of FOI for the first time.

It was clear that the photographs were exempt under the FOI Act because they both related to an investigation and also may have endangered the health of Mr MacRae's family. However, I was nevertheless required to consider the public interest with regard to their release.

On consideration of this issue, I concluded that the balance of the public interest favoured non-disclosure. While I accepted that there is a degree of public debate relating to the cause of Mr MacRae's death, I did not accept that the release of these photographs would contribute significantly to that debate. I also considered that the public interest would not be served by placing such images - which would almost certainly cause great mental stress to Mr MacRae's family - into the public domain.

I did not, therefore, consider that the particular circumstances of this case justified the overturning of the longstanding convention of protecting such sensitive information.

Click here to view the full text of this Decision: Decision 155/2007

Decision 154/2007 ? Mr Andrew Picken (Evening News) and Mr Robert Seaton and the City of Edinburgh Council

PFI/PPP contracts for schools in Edinburgh

Mr Picken and Mr Seaton separately requested information relating to school PFI/PPP projects from the Council. In response, the Council supplied copies of relevant files, from which some information had been redacted. The applicants both subsequently asked that the Council review its application of the FOI exemptions in relation to those redactions.

In response, the Council informed both applicants that locating and supplying the information had cost £1733. As this figure significantly exceeded the upper FOI limit of £600, the Council informed each applicant that no further information would be supplied. The Council also informed the applicants that the information already provided should, in fact, also have been withheld on this basis.

In assessing the applications made to me, I was required to consider whether it was indeed the case that it had cost the Council over ?1700 to supply information relating to its school PFI/PPP contracts. On consideration of this case, I discovered that four sets of documents were covered by these requests, with one set alone comprising 96 files totalling approximately 3000 pages. I subsequently concluded that Council estimates were indeed accurate.

The FOI legislation sets out that I cannot require the release of information where its provision would exceed £600. In this case, and on the basis of the voluminous nature of the contractual information held, I was required to conclude that the Council had acted in accordance with the FOI Act in refusing to consider this matter further.

Click here to view the full text of this Decision: Decision 154/2007

Unless otherwise stated, the decisions listed above 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 receipt of the decision.

The full text of all decisions issued under Scotland's FOI legislation can be viewed on our new decisions database at the link below:

 Scottish Information Commissioner decisions



At a Glance - July and August 2007
Case Statistics - July and August 2007
New Applications received:


 Enquiries responded to:


 Cases closed:


 Decisions issued:


News in Brief
Pile of Newspapers

Parliamentary FOI Workshop

On 16 January 2008 I will be visiting the Scottish Parliament to jointly host, with the SPCB, a workshop and discussion session for MSPs and their staff on Scotland's FOI legislation and how it might best be used to further the interests of constituents. The session will follow on from the launch this Autumn of an FOI resource pack, providing guidance to MSPs on using FOI effectively. Further information on both the session and the pack will be available shortly.

Holyrood FOI Conference in October

Holyrood Magazine is holding its fifth annual FOI Conference, supported by my Office, on Thursday 25 October 2007. Further details can be downloaded from:

Research on Public Awareness...

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

...and on Scottish Public Authorities

Researchers from the University of St Andrews and the Caledonian Business School are in the closing stages of preparing a report which examines the impact that Scotland's FOI Act has had upon information management practices within Scottish public authorities.

The report - entitled "The Freedom of Information (Scotland) Act 2002: New Modes of Information Management in Scottish Public Bodies?" - is due to be published on my website on International Right to Know Day, which this year falls on Friday 28 September.


Further Information
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 new website, or on Inform itself. Contact us at:

Scottish Information Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, KY16 9DS

Telephone: 01334 464610
Website: www.itspublicknowledge.infoEmail:
01334 464611

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