News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner
October 2014

 
Commissioner's commentary
Photo of Rosemary Agnew

Believe it or not, it's annual report time again! Last week I laid our Annual Report 2013/14 before Parliament. Regular readers will also be aware of the Special Report I issued about failures to respond to information requests (see Inform Newsletter August 2014).

You may recall that this time last year I first raised publicly my concerns that too many authorities appeared to be failing to respond to information requests (on time or at all). In many respects this should not have come as a surprise to authorities as I published all my decisions which all too often were about failure to respond. Although the evidence was already out there I had to weigh up the benefits to FOI of raising the issue in such a public way, with the risk that raising the issue might deter people from using their rights to ask for information. I also had to prepare for the possibility that more people would appeal failures to respond (FTRs) because they knew that the Commissioner was proactive about the issue.

We estimate from our records that the 2% fall in the number of appeals last year (from 594 appeals in 2012/13 to 578 in 2013/14) was the result of a drop in the number of appeals about FTR. It's still early days and it it is unclear at this point whether this will continue this year.

Naturally I'm pleased with these early indicators but it will come as no surprise that the issue is just as important as it ever was because even with the apparent drop in number, 24% of appeals last year were about FTR, and many of the points I raised in the Special Report still stand. The report was the result of analysis of our own appeal data, looked at in the context of the data authorities record on the Stats Portal about FTR and the good practice we know is already out there. The good news is we concluded that the issue appeared not to be widespread, being particularly acute in just a handful of authorities. The indications were that the underlying issues were less about FOI than about relationships with requesters (or particular types of requesters), but that FOI practice did not appear to be picking them up.

In response, 14 public authorities (from CEOs to administrators) wrote to me expressing overwhelming support for tackling FTR. This is very encouraging as it demonstrates a clear commitment to, and appetite for, improving FOI practice so that everyone who makes an FOI request in Scotland can be confident that they will get a response within 20 working days. We all know from our own experience that information requested through FOI is often time-sensitive, concerning current issues and important to those requesting it. We have seen information used in a variety of ways to support communities, inform debate and enhance democratic engagement.

I am keen that we provide support to authorities and requesters to help them achieve lasting improvement in FOI practice, an objective that is a core part of my strategic aims. In support of this, later this month, I will be launching a new Self-assessment Toolkit for authorities. The toolkit is in modular form, each module aiming to help authorities assess and (where needed) improve practice in particular area. This is a new approach for us, and the proof of the pudding will be, as they say, in the eating. The toolkit will only help us drive improvement if it is actually used by authorities. I'd be grateful for any suggestions about how to make that happen. The toolkit will be published a module at a time.

The first module, Responding on time, draws on the good practice we see in authorities and the views of a project working group of FOI practitioners, more about that later.  

Rosemary Agnew's signature

Rosemary Agnew
Scottish Information Commissioner

 

 
Annual Report 2013/14: Highlights
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  • 62% of FOI appeals were from members of the public. The media accounted for 14% of appeals, while prisoners accounted for 8%.
  • In 67% of my decisions, I found wholly or partly in favour of the requester. I usually require the release of information if I find that a public authority has incorrectly withheld it.
  • Public awareness of FOI in Scotland is at 78%. The highest record level was 80%, in a 2011 poll.
  • I received the highest number of enquiries about FOI to date. 2,008 enquiries were received, an 11% increase on 2012/13.
  • Scottish public authorities reported receiving over 60,000 FOI requests in 2013/14. You began submitting this data to me to collate and publish for the first time in 2013/14.
  • 75% of appeals of FOI appeals were decided or resolved in under four months, meaning we met our target of responding to 75% of appeals within this timescale.
 
New Self-assessment toolkit: Capture, Assess, Improve
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95%! That's how many Scottish public authorities report they are responding to FOI requests on time.

Only 1% of all requests in Scotland result in an appeal to the Commissioner.

Do you want to avoid being in the 1% by getting it right first time? Well, we'd like to help.

We are developing, over the next 18 months, a self-assessment toolkit for authorities to help them review and improve their FOI performance. The toolkit will eventually contain 11 stand-alone modules, each focusing on key elements of FOI practice. The first module of the toolkit Module 1 "Responding on time", is due to go live this month. We will be writing to every FOI practitioner when it is launched.

In the meantime, you can find out more about our plans for the toolkit in our new Self-assessment toolkit webpages. The next two modules Locating, searching and retrieving information and Providing advice and assistance will be available by March 2015.

 
Compliance, good practice and lessons learned
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Our Decisions Round-up provides a short summary of the decisions issued by the Commissioner each week, including a summary of the key learning points emerging from those decisions.

Failure to respond cases continue to feature regularly in our Decisions Round-up. Other areas in recent coverage include:

Searching for information

It is important that authorities always carry out thorough searches for requested information. We frequently receive appeals from requesters who believe that the authority has not located all the information covered by their request. As part of an investigation, we almost always ask authorities for details of the searches they carried out. So it's advisable to keep notes of the records searched, who carried out the searches, key words used, etc. The following Round-up's may be of particular interest:

We occasionally receive appeals from requesters that have been notified by the authority that information is exempt from disclosure, but during the investigation it has come to light that the information was not actually held. A thorough search at the point the request is first received should prevent this situation from occurring.

Provide specific reasons when withholding information

When withholding information in response to requests, authorities must explain their reasons for their decision. General arguments which don't relate closely to the information in question are unlikely to be sufficient. Examples of authorities providing detailed reasons, which we agreed with can be seen in Decisions Round-up: 28 July to 8 August 2014.

 
Our work at a glance: 2014/15
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 Date

Enquiries 

New applications 

Total number of valid cases closed 

Cases closed with a decision 

Settled / withdrawn etc. during investigation 

Apr/May

 347

89

55

40

15

 Jun/Jul

265

91

74

54

20

 Aug/Sept

 290

72

63

41

22

Year to date

902

252

192

135

57

Although it is too soon to say if the number of new applications and enquiries will increase or decrease this year, six months into 2014/15, volumes for both remain steady.

As an organisation, we also remain on target to meet our KPI of closing:

  •  75% of all cases within four months;
  •  85% of all cases within 6 months; and
  •  97% of all cases within 12 months.

It is also interesting to note that comparing the first six months of this year and the same period in 2013/14, the split between "valid" applications settled or withdrawn, and those where a decision was issued has not changed. In both years at this point, 30% of valid cases being settled or withdrawn during investigation, and 70% were decided by the Commissioner.

By the end of last year we had seen a drop of 2% in the proportion of valid applications about failure to respond. Since issuing our special report, this has risen to 33% by the mid-point of the year. We will monitor this further and no doubt we will have more to report later.

 
Our news in brief
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Regional roadshows continue
We visited the Western Isles on 2 and 3 October, where we delivered FOI training, advice and guidance on FOI related issues to staff from public authorities and key requester groups such as the media and the voluntary sector.

Further roadshows will be held in Stirling on 13 and 14 November and in February/March next year. Further details will be announced in the near future. If you would like to find out more about the roadshows or would like to host a roadshow in your area, please call the Policy and Information Team on 01334 464610.

 


The Commissioner's next Special Report: Scope of FOI
We are currently working on a Special Report on the scope of FOI and whether, 10 years after FOI law came into force in Scotland, all the right organisations are covered. The report will be laid in Parliament in early 2015, to coincide with the 10 year anniversary of the FOI Act. Watch this space for further details.

 


 

Centre for Freedom of Information - European Conference
The Centre for FOI in Dundee is organising a conference in Edinburgh on 4 November. The conference will focus on the challenges for practitioners in interpreting and implementing access to information laws which derive from European legislation, such as the EIRs and the revised Re-use of Public Sector Information Directive.

Speakers include Anya Proops, who recently acted for the UK Information Commissioner at the European Court of Justice on whether water companies are subject to the EIRs, and Carol Tullo of the National Archives, who will discuss the 2015 revisions to the Re-use of Public Sector Information Directive.

For more information visit: http://www.centrefoi.org.uk/seminars.php


2014 Holyrood Conference
The 2014 Holyrood FOI Conference is on 11 December at Our Dynamic Earth, Edinburgh. The conference will explore the impact and effect of the first 10 years of FOI in Scotland and look forward to what the future may hold. Confirmed speakers include Deputy First Minister Nicola Sturgeon, Scottish Information Commissioner Rosemary Agnew and Lord Wallace of Tankerness, Advocate General for Scotland, who introduced the FOI Bill to the Scottish Parliament. 

As in past years, delegates will have the opportunity to explore FOI practice. This year a practical workshop session, Preparing for self-assessment will introduce delegates to the new toolkit (see above) and explain how practitioners can use it to drive improvements and enhance performance in their own authorities. The session will also give delegates the opportunity to contribute to the development of future tools and resources.

For further information on the conference programme as it develops, or to book a place, visit: http://foi.holyrood.com/.

 
Contact us
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The Commissioner's staff are pleased to provide information, support and advice on any issue relating to freedom of information. We also welcome your feedback, including about our website and Inform newsletter. Contact us at:

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

Website: www.itspublicknowledge.info

Telephone: 01334 464610

Email: enquiries@itspublicknowledge.info

Fax: 01334 464611

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