Friday 28 September 2018 was International right to Know Day, a day designed to highlight the public’s right to know and to campaign for FOI laws. Scotland has had Freedom of Information laws in place since January 2005 and a similar statutory regime entered into force on the same date for information held by UK public bodies. The Scottish Information Commissioner used International right to Know Day to launch his office’s annual report [pdf].
In 2017/2018 the Commissioner’s office received a total of 507 appeals, up from 425 in 2016/2017 (but not the highest number received in any one year). Of the appeals that were received the vast majority (75%) were classed by the commissioner’s office as coming directly from individuals with the media accounting for 11% and commercial/private enterprises accounting for 3%.
In terms of which public authorities have their responses appealed to the Commissioner; local authorities still make up the largest percentage (although there was a fairly significant decrease in the percentage share of appeals from the previous year). Local authorities are followed the Scottish Government and its agencies and the police.
30% of the appeals made to the Scottish Information Commissioner were deemed to be invalid appeals; that is to say they were appeals that the Commissioner’s office could not investigate. The annual report reveals that among the most common reasons why an appeal was not valid are that the applicant had not made a request for review to the Scottish public authority (an appeal can only be made to the Scottish Commissioner after the Scottish public authority has reviewed its initial decision or failed to carry out a review of its initial decision that has been requested) and that the timescales for making FOI appeals within the Act had not been met. Requesters should remember that they should make requests for review within 40 working days of the date that the authority issued its response or the date that it should have responded where no response has been received. Furthermore, it should be remembered that appeals to the Commissioner should normally be made within 6 months of the date on which the authority responded to the review request or, where no response has been recieved to a request for an internal review, within 6 months of the date that the authority should have responded to the internal review.
Failure to respond appeals, that is an appeal which concerns a failure by an authority to respond to a request and/or request for review, continue to be a problem. In 2017/18 19% of the appeals handled by the Commissioner concerned a failure to respond; this is down slightly from the 20% it was in 2016/17, but is up from the 16% figure in 2015/16. These are fairly clear-cut appeals as an authority has either responded within the statutory timeframe not and they should be appeals that authorities can avoid fairly easily. No authority can be perfect 100% of the time and there will be cases where the inflexibility of the 20 working-day rule, in particular cases where the public interest is finely balanced or where third party consultation is required, will mean that breaches will occur; however, staying in contact with the requester can help to avoid these appeals even where the authority is technically in breach of the law.
Of the decisions made by the Commissioner in response to appeals under section 47 of the Freedom of Information (Scotland) Act 2002, 65% resulted in a decision which was wholly or partially in favour of the requester.
Some interesting enforcement matters from within the report which are worthy of mention include:
- Highland Council was issued with an Information Notice when it delayed in providing information to the Commissioner’s Office which was required in order to enable the Commissioner to investigate an appeal made to him by a requester.
- The Commissioner also highlights that his office considered referring East Dunbartonshire Council to the Court of Session for failing to comply with one of his decisions (but in the end, it would appear that, such a step ultimately proved unnecessary).
- The Commissioner refers to his high profile level 3 intervention in respect of the Scottish Government’s performance and culture in respect of FOI, which is still ongoing.
- A less profile level 3 intervention by the Commissioner was the ongoing intervention in Police Scotland, which is now in the monitoring phase after an action plan was agreed between Police Scotland and the Commissioner. There were concerns about searching for and locating information to respond to information requests as well as concerns around record-keeping.
- Two independent schools (which had become subject to FOI following the last extension of the Act by the Scottish Ministers) were subject to level 4 interventions where they had failed to adopt publication schemes as required by section 23 of the Freedom of Information (Scotland) Act 2002.
The Commissioner’s report makes reference to three Court of Session cases in respect of decisions that it had made, one of which Inksters were instructed in by one of the parties. The number of appeals against decisions of the Scottish Information Commissioner remain particularly low (both appeals taken by requesters and Scottish public authorities); whether this is because the Commissioner’s office is doing a good job in terms of interpreting the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004, or whether it has more to do with the significant costs to be faced by requesters and Scottish Public Authorities who decide to take an appeal to Scotland’s highest civil court is a matter which is very much open for debate.
There is lots of other useful information with the Commissioner’s annual report, but at the risk of this blog post becoming too unwieldy I shall leave it there.
Whether you are a requester or a public authority we can provide you with advice and assistance on Freedom of Information matters. Contact Alistair Sloan on 0141 229 0880 or you can send him an E-mail. You can also follow our dedicated twitter account on information law matters.