Concern over rise in FOI failures

News release: 1 October 2013


When Scottish public authorities fail to respond to freedom of information (FOI) requests on time they harm relationships with communities and create unnecessary work for themselves, the Scottish Information Commissioner said today [1 October 2013].

Speaking at the launch of her Annual Report, Commissioner Rosemary Agnew revealed that there was a 14% rise in appeals to her office in 2012/13, and that 27% of those appeals related to a failure by the public authority to respond. This is the highest proportion of such appeals to date. Under Scottish FOI law, public authorities have a legal duty to respond to the requests they receive within 20 working days.

The publication of the report coincides with new research which reveals that only 49% of the Scottish public are confident that they would receive an FOI response within 20 working days, with only 10% stating that they would be "very confident" of a response.

Rosemary Agnew said:

"These findings concern me. Eight years on from the introduction of FOI, we would expect authorities to be more effective at handling requests, not less so. When they don't respond, authorities fail to respect people's legal rights to information: information which can be extremely important to individuals and communities. By contrast, authorities that perform well take a customer focussed approach, respond promptly and engage with requesters.

"A failure to respond can also harm public perception of FOI. While many FOI requests are answered on time and a lot of information is provided, the research findings reveal that this is certainly not the public's perception.

"Scottish public authorities that are falling short should take steps to address their performance as an immediate priority. In doing so, they should also remember that failing to respond doesn't make requests go away, but just creates unnecessary extra work and increases costs. Failure to respond generates complaints, review requests, and appeals to my office, and damages a public authority's reputation. The most efficient option is to get it right first time."

The Commissioner announced that she is planning to lay a Special Report for the Scottish Parliament exploring such failures in the spring.

The Commissioner's Annual Report also reveals that:

  • The number of FOI appeals increased by 14% over the last year, to 594 appeals.
  • 564 cases were closed, a 9% increase on the previous year.
  • The Commissioner found completely in favour of requesters in 37% of cases and completely in favour of authorities in a further 37%. The remainder were partially upheld.
  • 60% of appeals were made by members of the public
  • 43% of appeals related to local government bodies and 31% related to the Scottish Ministers or the Scottish Parliament.
  • Enquiries to the Commissioner rose by 8% last year.

The report also contains examples of how FOI has been used by the Scottish public over the last year, seeking a wide range of information on issues relating to housing, health, transport, education and the environment.

Discussing the rise in FOI appeals, Rosemary Agnew said:

"Our case volumes have continued to rise, with a 14% rise over the last year and a 49% increase in the last five years. I'm happy to report that we've been able to manage these increases through a combination of hard work and a considered review of how we conduct our business. As a result, we have closed more cases than ever and reduced the time we take to investigate appeals.

"However, I am concerned about how sustainable this position will be in the longer term. These advances have been achieved against a backdrop of decreasing resources, and if volumes continue to rise, it will pose significant challenges to my ability to enforce FOI effectively."

The Annual Report is published today on the Commissioner's website here.


Notes to editors

About the Annual Report 2012/13

  • This is the tenth annual report of the Scottish Information Commissioner, and the first to report on Rosemary Agnew's tenure as Commissioner. Rosemary took up post in May 2012.
  • The report was laid before the Scottish Parliament on 30 September 2013.
  • The Commissioner has also published data showing details of all the appeals received by her office since 2005, by public authority. To view this data, visit

About failures to respond

  • On receipt of an FOI appeal the Commissioner's team will record the reason for that appeal, including whether the requester's complaint relates to a failure by the authority to respond within 20 working days. Such failures are referred to as "technical" failures by the Commissioner.
  • The proportions of appeals recorded as "technical" on receipt over the last three years were (of 159 cases):
    • 2012/13 - 27%
    • 2011/12 - 25%
    • 2010/11 - 16%
  • The proportions of "technical" cases were even greater for those appeals which the Commissioner was able to take forward for investigation (she cannot accept appeals which do not meet statutory requirements). Of the cases valid for investigation by the Commissioner, the proportion which were "technical" were (of 110 cases):
    • 2012/13 - 29%
    • 2011/12 - 26%
    • 2010/11 - 16%
  • A spreadsheet containing the data for all technical appeals investigated during 2012/13 is available at

  • In technical cases, the Commissioner will normally issue a decision requiring the authority to respond to the requester.

  • Over the last year the Commissioner has published regular guidance for authorities to support their compliance with FOI timescales through her weekly "Decisions Round-up" bulletin. See: for more information.

About the Special Report

  • Rosemary Agnew has announced her intention to prepare a Special Report for the Scottish Parliament exploring these "technical" failures to respond to FOI requests within 20 working days. 

  • Under Section 46(3) of the FOI legislation, the Commissioner may lay a report before Parliament on an issue relevant to her functions.

  • The current Special Report is being prepared for publication in spring 2014.

About the public awareness research

  • The public awareness research referenced was carried out as part of Ipsos MORI's Scottish Public Opinion Monitor Wave 16, which surveyed 1,000 respondents by telephone, between 9th and 15th September 2013.
  • Respondents were notified of Scottish public authority's legal obligation to respond to FOI requests in 20 working days and asked:

    "If you made a request for information, how confident are you, or not, that you would get a response within 20 working days?"

    Responses were:
    • Very confident - 10%
    • Fairly confident - 39%
    • Not very confident - 30%
    • Not confident at all - 12%
    • Don't know - 9%
  • The researchers asked respondents a number of additional questions relating to freedom of information in Scotland. Full details of all research findings are currently being prepared for publication, with the report due for publication shortly. If you would like to be sent a copy of the research on publication, email Please also indicate whether you would like your details to be added to the Commissioner's news release mailing list.

About freedom of information

  • The Freedom of Information (Scotland) Act 2002 (which came into force on 1st January 2005) provides individuals with a right to receive the information held by Scottish public authorities. The Act applies to the Scottish Parliament, the Scottish Government and the NHS in Scotland, as well as all of Scotland's police forces, local authorities and universities.
  • Under FOI any written request for information must be responded to within 20 working days. Information can only be withheld where the FOI Act expressly permits it. Information can be withheld, for example, where its release would breach someone's right to privacy under data protection legislation, or where it would harm national security or an organisation's commercial interests. Even where an exemption applies, however, in many cases the Act also says that information must be released if it is in the public interest to do so.
  • There is a three-step process to requesting information. This works as follows:
    • The request stage. An individual writes to an authority to request information. In most cases, the information will be provided first time, and there will be no need to move on to the later stages. Where information is refused, however, there is a right of appeal.
    • The review stage. The first stage of this right of appeal is to write to the authority asking it to review its handling of the original request. The authority has a further 20 working days to reconsider the request and respond.
    • The application stage. An individual can appeal to the Scottish Information Commissioner if they are still unhappy. On receipt of an appeal, the Commissioner will conduct a full investigation. If she finds that the authority has withheld information incorrectly, she can force the authority to release it. She may also uphold the authority's decision to withhold information.

About the Scottish Information Commissioner

  • The Scottish Information Commissioner is a public official appointed by Her Majesty the Queen on the nomination of the Scottish Parliament.
  • The Commissioner is responsible for promoting and enforcing Scotland's freedom of information laws.
  • The Commissioner: investigates applications and issues legally enforceable decisions; promotes good practice amongst public authorities; and provides the pubic with information on their rights.
  • The current Scottish Information Commissioner is Rosemary Agnew.


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