Tag Archives: Inksters Court Cases

FOI in Scotland in 2016/17: The Scottish Information Commissioner’s Annual Report

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.

Alistair Sloan

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.

Welcome to the Information Law Blog by Inksters Solicitors

Welcome to the Information Law Blog from Inksters Solicitors.  On this blog we will be covering the latest issues in the areas of Data Protection/Privacy and also Freedom of Information.  Most of the contributions to this blog will be by Alistair Sloan, although there may be contributions from other members of the Inksters team from time to time.

Alistair is one our solicitors based in our Glasgow HQ; he offers legal services throughout Scotland in the field of information law, among others.   Alistair regulalry travels around Scotland and in particular visits our Caithness base in Wick on a frequent basis.  Alistair has been involved in the fields of freedom of information and data protection for a number of years, including prior to qualifying as a solicitor, and has built up a knowledge base on both areas throughout that time.  While studying for his Master of Laws degree, he researched the Information Commissioner’s use of Monetary Penalty Notices for breaches of the Data Protection Act 1998.

The area of information law is constantly developing.  The biggest change on the horizon is the General Data Protection Regulation, which will be applicable in the UK (and across the rest of the European Union) from 25 May 2018.  This new Regulation from the European Union represents the single biggest change to the laws relating to data protection and privacy in the UK in more than 20 years.

Much of the field of Information law is governed by EU law in one way or another, whether it be data protection or access to environmental information held by public authorities; therefore, the hot political subject of Brexit will feature heavily in the information law field over the coming years.

We’re not new to the world of information law; in 2016 our Sylvia MacLennan acted for the successful Petitioner in WF v Scottish Ministers.  This case challenged the position in Scotland where an accused person could seek access to the medical records of a complainer in a criminal case, but that the complainer was said not to have any standing to make representations directly to the court (including through their own solicitor) on the question of whether their medical records should be disclosed to the accused.  It also challenged the lack of availability of legal aid in Scotland to complainers concerning such issues.

We hope that this blog will become a useful resource for individuals to find out about the latest developments in the field of information law.  To keep up to date with this blog and what we are doing you can follow Alistair on twitter here; we also have a dedicated information law twitter account, which you can follow as well.

If you want to discuss an information law matter with Alistair you contact him on 0345 450 0123 or by completing the form on the contact page of this blog.  Alternatively, you can send him an E-mail directly.