News and Commentary from the Scottish Information Commissioner

News and commentary from the Scottish Information Commissioner
August 2014

Commissioner's commentary
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We all know that good customer service enhances an organisation's reputation and that poor customer service can often have a disproportionately detrimental effect. Many of us will have shared our experiences of service, good and bad, with friends and family at some point and have been influenced by what they said. This is borne out by recent research which suggests that 70% of people will not forgive a business following poor service.

The public sector is not immune to this, but unlike private businesses, the detrimental affect can have the double-whammy of damaging reputation and undermining trust. 60% of people in the UK report that they get angry if public sector organisations kept them waiting unnecessarily or make mistakes, while research published in June revealed that organisations with low levels of customer satisfaction also have lower levels of trust.

The lessons are clear: poor customer service will harm the public's perception of your organisation, while good customer service will protect and enhance it.

These lessons are even more relevant for FOI request handling. Failing to respond to an FOI request is not just a customer service failure: it also sends the message that you're failing to meet your legal duties, and failing to respect the requester's statutory rights.

It is concerns such as these that informed my first Special Report as Commissioner, focussing on the impact of failures to respond, which was laid before the Scottish Parliament on 7 August.

FOI law requires that requests for information are responded to within 20 working days. However, as my Special Report reveals, almost a quarter of the valid appeals I receive are about an authority's failure to respond.

This situation is not acceptable. When people use their FOI rights they ask for information at the point they need it and have a reasonable expectation that they will receive it. Scotland's FOI law was deliberately drafted to get information to requesters promptly. The 20 day deadline is the last possible day on which non-exempt information should be provided, NOT the target day. Failing to respect these provisions harms the relationship between an authority and a requester, the authority's reputation with the wider public, and can damage public confidence in FOI as a whole.

Having said all that, the good news is that failure to respond is not the typical FOI experience. As I make clear in the report, most authorities are meeting their obligations well, with only 34 authorities being the subject of the failure to respond appeals I received last year. In addition, five authorities accounted for 50% of those appeals, indicating that particular bodies are experiencing particular problems. Our research suggests that, where this problem is most acute, the issue may not be just about FOI; but may be as much to do with the relationship between an authority and a requester or a single issue which has driven request volumes.

The report concludes by providing advice and guidance to help authorities improve their performance. Fortunately, our experience suggests that there is much that authorities can do. From implementing FOI reporting at a senior level in an organisation to reviewing and improving the systems that log and track requests, the report sets out a number of measures to support improvement. By working to address these issues, authorities can take strong steps towards developing better, more effective relationships with the communities that they serve.

As you will see, I have drawn on the experiences of a number of authorities who took, or are taking, steps to improve response times. I would love to hear from you about what has worked, so that we can share it for everyone's benefit.

Rosemary Agnew's signature

Rosemary Agnew
Scottish Information Commissioner

Read the Report:
Special Report - Failure to Respond to FOI Requests

Settling for better?
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"Your decision to act as an intermediary to resolve the issue led to a prompt and effective outcome."

"Your intervention encouraged the authority to provide an explanation and information that allowed me to have the matter resolved."

"The matter was solved before a decision was required."

These are just a small handful of the positive comments we've had from individuals involved in cases which have 'settled'. Cases are settled when our staff work to bring about a quicker resolution, without the need to issue a formal decision.

In response to this feedback we've introduced a new approach to the way we investigate from the beginning of August, increasing our efforts to settle cases. Settlement, where it works, is a better way to resolve a case than going to decision as it is less adversarial and supports better relationships between authorities and requesters.

So what does this mean in practice? Well, we should see more cases being settled without a decision. If we think an authority was wrong to withhold information, we'll tell the authority and give them a chance to disclose it. If we think the authority was right, we'll tell the requester and suggest they withdraw their appeal.

Other changes:

  • We're being more prescriptive about the way we ask authorities to give us information and we're requiring them to complete a "schedule of documents", describing the information they're withholding and why they're withholding it. Authorities may also find these schedules helpful for their own internal use, for example, at review.

  • Finally, we'll be asking authorities to respond to our questions more quickly, moving from three to two weeks for responses. After all, if you're applying FOI well, and have carried out a proper review, the answers we need should be at your fingertips!

You can read our new procedures or download a'schedule of documents' form at:

We'd also be keen to hear what you think of the changes.  Contact us to let us know.

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

Environmental impacts

Recent round-ups have contained a number of learning points which highlight some of the less well-known differences between the FOI Act and the EIRs (which govern access to environmental information). For example, did you know that:

  • Prohibitions on disclosure won't apply to environmental information
    There are a small number of laws which will prevent the disclosure of information under FOI. Section 26 of the FOI Act automatically exempts information from release if a prohibition on disclosure applies to it. There is no such equivalent in the EIRs, and regulation 5(3) of the EIRs makes it clear that other legislation cannot be a prohibition against disclosure. Requested information should therefore be considered in terms of the EIRs only: only being withheld if an EIR exception applies. (Decisions Round-up: 21 to 25 July 2014)

  • Authorities can't accept a late request for review under the EIRs
    Under the FOI Act, authorities can choose to accept a late request for review (i.e. one which is made after the 40 working day period set out in the FOI Act) if they wish to do so. There is no similar provision under the EIRs, so late requests for review cannot be accepted if the request is for environmental information. (Decisions Round-up: 7 to 18 July 2014)

  • Requests can be transferred under the EIRs
    When an authority receives a request for information that they don't hold, but they believe that another public authority may hold it, the request can be transferred directly to that authority when the information is environmental. But under FOI, requests for non-environmental information can't be transferred. Under FOI the authority must respond by telling the requester that they don't hold the information and point the requester towards the authority that is likely to hold it. (Decisions Round-up: 16 to 20 June 2014)

  • The EIRs cover a wider range of bodies
    You may be aware that the terms of the EIRs mean that they will apply to a wider range of organisations than those covered by FOI Act. We've had very few cases about this wider scope, but in June we issued a decision which found that a housing association met the criteria in the EIRs. We required it to respond to a request for environmental information. (Decisions Round-up: 02 to 13 June 2014)

You can read all of the Decision Round-ups published to date at And if you don't already receive it, you can sign up to receive the weekly email here.

Our work at a glance: 2014/15
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Our news in brief
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On the road again...
We'll be continuing our successful programme of regional roadshows into 2014/15, with the first Roadshow taking place in Stornoway on 3 October. As with other roadshows, we'll deliver FOI training and awareness raising sessions for local public authorities, media groups, voluntary organisations and the general public.

Two further roadshows are planned for later in 2014/15, with details due to be announced shortly. Watch this space...



Get ready for self-assessment
Work is underway on a new range of self-assessment tools to support authorities to assess and improve their own FOI and EIR practice. The tools are being developed in consultation with representatives from across the Scottish public sector, to ensure that the resulting toolkit is as practical, user-friendly and accessible as possible.

The toolkit will initially contain around 10 individual modules, each one focussing on a key area of practice.

The toolkit will be just one part of a new range of resources being developed for authorities this year. Other planned projects include the development of a new FOI knowledge hub, and the new or updated guidance on FOI and the EIRs.

For more information or to share your thoughts, contact us at



Publication scheme renewals

Health sector bodies recently renewed their publication schemes, with organisations across the sector choosing to adopt and implement the Commissioner's Model Publication Scheme.

Work hasn't stopped there though, and we're already thinking about the next phase of publication scheme renewals. In 2015, bodies listed under Part 7 of Schedule 1 of the FOI Act ('Other' public bodies, including Audit Scotland, Scottish Enterprise and the Commissioner herself) are due to renew their adoption of the Model Scheme, along with all of Scotland's publicly-owned companies.

The 2015 Model Publication Scheme will be published in September 2014, and we'll be writing to affected bodies then to recommend its adoption. In the meantime, you can find out more about the Commissioner's model scheme approach here.


New Staff

We're pleased to announce the addition of three new members of staff to our office, replacing colleagues who have recently moved on to new challenges. Lorraine Currie, formerly of Anderson Strathern, has joined our Policy and Information team, while Andrea McEwan is our new Enforcement Team Support Assistant. Finally, Wendy Snedden, who joins us from Police Scotland, has is the newest member of our Enforcement Team.

We look forward to introducing you to our newest members of staff at our events and engagements over the coming weeks and months!


2014 Holyrood Conference

The 2014 Holyrood Conference will take place on 11 December in central Edinburgh. The conference will explore the impact and effect of the first ten years of FOI in Scotland and look forward to the future of information rights in Scotland. Speakers include Deputy First Minister Nicola Sturgeon, Commissioner Rosemary Agnew and Lord (Jim) Wallace of Tankerness, who introduced the FOI Bill to the Scottish Parliament all those years ago.

For further information on the conference programme as it develops, or to book a place, visit:


Centre for FOI Conference

The Centre for FOI is planning a conference which will take place in Edinburgh in November. Further information will be available shortly from the Centre for FOI's website at


Don't forget...       
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Our 'Your Rights' pages contain guidance on using FOI for the public, voluntary organisations, elected representatives and journalists, along with tips for requesters to help everyone get the most out of their FOI rights.

Visit to find out more.

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


Telephone: 01334 464610


Fax: 01334 464611

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