Commissioner's commentary

This has been a particularly eventful year in the short life of freedom of information in Scotland – and for my role as Commissioner. Applications are on the increase, new initiatives in promoting good practice are bearing fruit, there is the prospect of extending the reach of FOI, yet interpreting the legislation remains a challenge.

Application volumes...

When the legislation came into force five years ago the number of applications was higher than expected and – at 580 in the first year – was significantly higher, pro rata, than the rest of the UK. The numbers in subsequent years dipped from that elevated level. In 2009, however, there has been an upturn in applications, with 421 cases compared to 367 in 2008. This pattern is relatively consistent with international experience and, on this basis, we can expect the numbers of applications to rise steadily in coming years.

Improving practice...

Although determining individual applications remains my key statutory responsibility, the FOI Act also requires that I promote good practice by public authorities. This year I have devoted resources to carrying out a number of general assessments of public authorities. My staff have carried out audits considering whether authorities are:

  • recognising information requests;
  • applying the appropriate regime (the FOI Act or the Environmental Information (Scotland) Regulations);
  • responding to requests in time;
  • providing advice and assistance to applicants;
  • informing applicants of their appeal rights.

A range of public bodies have been assessed – local authorities, educational institutions, the police, publicly owned companies, etc. We have been able to recommend a range of improvements which could be made and, in every case so far, have agreed a voluntary plan of action for the authority – without need to use my powers of enforcement.

Interpreting the law...

Very few of my decisions end up before the Court of Session. This year, however, one of my decisions was overturned by the Court. In its Opinion, the Court helped clarify who should be regarded as a true applicant (where requests are made on behalf of a third party) and what constitutes a valid request. I have subsequently issued guidance to all authorities on these issues.

Towards the end of the year the Scottish Government indicated that it took a different view, issuing instructions to its staff which were inconsistent with my guidance. Alongside this, the Government disputed whether I had the legal authority to determine the cases it considered to be invalid.

This stance could have had a dislocating effect on the normal functioning of FOI in Scotland. For example, the Government's stance would have meant the rejection of a high proportion of the requests that seek to access information by reference to documents – a common way for information requests to be framed. Subsequent discussions have narrowed the points of difference and, in particular, my authority to determine whether applications are valid is now accepted. However, it remains to be seen whether my decisions on the validity of such requests will be challenged in 2010.

Environmental information

Although the Environmental Information Regulations (EIRs) have been in effect since 1992, they have been the "Cinderella" of the freedom of information regime. In practice authorities have largely assumed that the provisions of the new EIRs – which came into effect on 1 January 2005 – were very similar to those of FOI.

While for the most part this is true, many of my decisions have demonstrated that there are significant differences which can lead to very different outcomes. (For example the EIRs apply to oral as well as written requests for information, all exceptions under the EIRs are subject to the public interest test and there are no prohibitions on disclosure affecting environmental information).

In 2009 I issued detailed guidance on the EIRs which, if followed, should ensure authorities avoid adverse decisions for failing to properly recognise and deal with requests for environmental information.

Academic collaboration...

The Centre for Freedom of Information was launched in collaboration with the Law School at Dundee University. I am delighted to be Co-Director of the Centre along with Professor Alan Page, Dean of the Law School. Already we have had a number of successful seminars examining aspects of FOI in Scotland – including personal information, environmental information, and policing and the public interest.

We have plans for the Centre which extend into publication and teaching. We are also exploring international cooperation and were pleased to meet with Professor Richard Calland of the University of Cape Town and Dr Patricia Jonason of Södertörn University, Sweden who have established the International School for Transparency.

We are also working with the University of Strathclyde on a 3 year research project to look at the use of FOI rights by civil society groups. The findings from an extensive survey of over 700 voluntary and campaigning organisations across Scotland give food for thought. While most get the information they want first time, a sizeable number report that they do not. In addition, many report that they would be inhibited from pursuing their rights under FOI for fear that this may jeopardise their relationship with an authority. Qualitative research being conducted in 2010 will explore these and other issues in depth.

Extending FOI...

The FOI regime encompasses 10,000 public authorities ranging from Government to GPs. However, a range of public services are being delivered by bodies not covered by FOI – for example, by local authority trusts providing leisure and recreation services, housing associations providing social housing and contractors carrying out a range of functions related to education, health and prisons.

I have often highlighted the need to extend FOI to cover these bodies, and was pleased when the Scottish Government indicated its intention to bring some within the scope of FOI. I look forward to working with the Minister and Government officials to identify specific bodies to be consulted, and also to subsequently working with those bodies to ensure a smooth path towards designation.

Scottish Information Commissioner