Margaret Keyes, Acting Scottish Information Commissioner chose yesterday, International Right to Know Day, to launch her office’s annual report [pdf] for the 2016/17 year. The report finds that the public’s awareness of the right to ask and obtain information from public bodies is high, at 85%.
The Scottish Information Commissioner is a statutory office holder charged with enforcing the Freedom of Information (Scotland) Act 2002, the Environmental Information (Scotland) Regulations 2004 and the INSPIRE (Scotland) Regulations 2009. The Commissioner’s office, amongst other things, investigates complaints made by individuals and organisations who have exercised their rights under these various pieces of legislation, but who are dissatisfied with how the Scottish public authority has handled their request.
In 2016/17 the Commissioner received a total of 425 appeals and issued a total of 252 formal, legally enforceable, decision notices. Most of the appeals received related to requests made under the Freedom of Information (Scotland) Act 2002 with the remainder relating to requests which fell to be dealt with under the Environmental Information (Scotland) Regulations 2004. The Commissioner received no appeals under the INSPIRE (Scotland) Regulations 2009 (although these Regulations are much more specialised and are probably only really of interest/relevance to a limited number of people).
There lies a right to appeal against formal notices issued by the Commissioner, including a formal decision notices, to the Court of Session. A very small number of appeals were made to the Court of Session during the 2016/17 year, according to the Commissioner’s report (some of which Inksters were instructed in by the Appellant).
The Commissioner has a range of enforcement tools which can be deployed. One of those is to issue an ‘enforcement notice’ which requires a Scottish public authority to take specified steps to comply with the legislation. In 2016/17, the Commissioner issued four enforcement notices (which represented the first enforcement notices ever issued by the Commissioner).
Where the Commissioner reasonably requires information in order to (a) assess whether a Scottish public authority has complied, or is complying, with the legislation; or (b) assess whether a Scottish public authority has complied, or is complying, with the statutory codes of practice issued by the Scottish Ministers, the Commissioner can issue an Information Notice. In 2016/17, the Commissioner issued 3 such notices.
The Commissioner’s decision notices are legally enforceable and where the Commissioner considers that a Scottish public authority is failing to comply with a decision notice the Commissioner has the power to certify this to the Court of Session. The Court can ultimately, after making enquiries, deal with a Scottish public authority which has failed to comply with a decision notice as if they were in contempt of Court. The Commissioner has never made such a certification, but the 2016/17 annual report reveals that the Commissioner came close to doing so during the course of that year.
On the whole it seems to have been a busy year for the Scottish Information Commissioner’s Office; although, the number of appeals received in 2016/17 was lower than in 2015/16.
We are able to provide advice and assistance in connection with a range of Freedom of Information matters, including appeals against decisions of both the Scottish and UK Information Commissioners. If you would like to do discuss a Freedom of Information, or any other Information Law, matter with us then you can contact Alistair Sloan on 0345 450 0123. Alternatively, you can send him an E-mail.