Freedom of Information in Scotland – vital updates

With digital communications and tools such as WhatsApp firmly part of our daily lives, it’s no wonder that questions around what is, and is not, covered by Freedom of Information (FOI) are arising. The Scottish Information Commissioner (“SIC”) recently launched an intervention into the Scottish Government’s use of tools such as WhatsApp. We acted in an FOI appeal which resulted in a rare  decision from the Court of Session on when information is “held” for the purposes of FOI. Further activity relating to Freedom of Information has included the SIC giving evidence to the Scottish Parliament.

Read on for more on these developments, plus learning points from SIC decisions and a summary of the latest consultation and FOI reform news.

New intervention on WhatsApp and informal comms

In February, the SIC notified the Scottish Government that he was launching an intervention to support improvements in the organisation’s practice with regarding the use and retention of information created and shared via informal communication tools, like WhatsApp. This intervention followed the UK Covid-19 inquiry evidence, which has highlighted issues in respect of informal communication tools being used to carry out government business. Where any public body uses such tools to carry out official business, then this information will usually fall under the scope of the Freedom of Information (Scotland) Act 2002 (“FOISA”).

The intervention is a Level 3 intervention, meaning that it aims to address serious systemic failures in practice, and will typically require a detailed action plan to be put in place to address any failures or concerns identified. This intervention also sits beside another Level 3 intervention to support improvements in the Scottish Government’s FOI practice.

You can read the SIC’s briefing on this here.

Court of Session ruling on information being “held”

In December 2023, the Court of Session ruled on the important issue of when information will be deemed as “held” by a public authority, in the Scottish Ministers v The Scottish Information Commissioner [2023] CSIH 46. Anderson Strathern acted for the SIC, alongside David Johnston KC as Counsel. The case was in respect of an FOI request received by the Scottish Ministers from an individual, asking for all written evidence from the investigation into whether the then First Minister Nicola Sturgeon had breached the Ministerial Code.

The investigation into the potential breach was led by an independent adviser, Mr James Hamilton. The Scottish Ministers had responded to the FOI request by declining to provide the information on the basis that Mr Hamilton was independent of them, and so any information was not “held” by or on behalf of the Scottish Ministers within the meaning of section 3(2) of FOISA. Mr Hamilton was not subject to FOISA, and therefore, the information was outwith the scope of FOISA.

An appeal was made to the SIC who found (Decision 004/2023) that information stored on the Scottish Government’s systems by Mr Hamilton and his team was “held” by the Scottish Government for the purpose of FOI law, and should therefore be considered when responding to a related FOI request. This decision was appealed by the Scottish Ministers to the Court of Session.

The Court found that, while the steps taken to establish Mr Hamilton’s independence from the Scottish Government were perfectly proper for the investigation, they were of no real significance when it came to addressing the different issue of whether the Ministers held the information at the time of the request. The Court preferred a non-technical approach to the concept of holding information, as technicalities and unnecessary legal concepts would over-complicate matters contrary to the purpose behind FOISA. There were numerous factors pointing to an appropriate connection between the requested information and the Scottish Ministers, such that the Ministers did hold the requested information. The Court therefore refused the appeal.

A summary of the judgment is available here.

Scottish Information Commissioner gives evidence to Scottish Parliament

On 22 February 2024, the Commissioner gave evidence to the Scottish Parliament’s Standards, Procedures and Public Appointments Committee on the current FOI landscape. We have summarised some of the key points:

• The Commissioner updated the Committee on plans to resolve the backlog of FOI appeals.
• The Commissioner discussed the importance of publication by design and for public sector organisations to focus on a culture of publication, and building “self-service” processes for the public to access information without having to submit an FOI request. This should help reduce costs.
• The Commissioner noted that the Codes of Practice on publication schemes were written 20 years ago, where the percentage of the population with access to the internet was vastly different from today.
• The Commissioner shared his views on reforming elements of Scotland’s FOI law, e.g. the limits of the current law with regard to evasion of FOI law.
• In relation to the proposal to have a designated FOI officer in public sector organisations, the SIC office expressed that it was partially supportive of the proposal. It explained the issue is that everyone across the entire organisation should be responsible for FOI, not just one individual. While it is supportive of the idea that there is a statutory designated officer, organisations need to ensure that the principles of FOI remain throughout the organisation and are promoted by everyone in respect of their remit.

The official report is available in full here.

Decisions of the SIC

Applying substantial harm test

When relying on this exemption, authorities must show what specific harm would be likely to be caused by disclosure of the information, and how that harm would be expected to follow from disclosure.

In a recent decision (Decision 112/2023), a request was made for information on total fee payments and the dates of payments made in relation to Lochaber Smelter. The Commissioner accepted that disclosure of the total fee paid would (or would be likely to) substantially harm the effective conduct of public affairs, so could be withheld under section 30(c) of FOISA.

However, the Commissioner was not satisfied that disclosure of the dates of those payments, without knowing the actual value of the fee payments, would result in substantial prejudice to the effective conduct of public affairs. Therefore, the information relating to the dates of payments must be disclosed. This decision highlights the importance of exercising caution when applying exemptions, to ensure that the harm of disclosing each particular part of the requested information is considered and tested.

Reviews must be fair, impartial and allow a different decision to be reached

In a recent decision, the requester questioned the independence of an FOI review that was carried out by  staff from the same office within the authority as had issued the initial response, and by someone who was of lower rank than the initial responder, and therefore, it was suggested, less likely to take a different view.

The authority stated that it had a small team available in each of its establishments, but that each team had access to specialist central support if necessary. In this case, the Commissioner noted the terms of the Scottish Ministers’ Code of Practice on the Discharge of Functions by Scottish Public Authorities, which provides that the review procedure must be fair, impartial and allow decision makers to look at the request afresh. The Commissioner accepted, taking into account the size of the team responsible for handling requests at the authority, that the review process was appropriate in the circumstances.

Consultations and Reform

Holyrood FOI Conference

In case you missed it, the FOI Holyrood Conference took place in November last year. Attendees were able to discuss common issues, learn and share good practice, and hear about the latest policy developments, including the changes to FOI proposed by the two separate consultations on FOI reform launched in November 2022 (one by Katy Clark MSP and the other by the Scottish Government). Anderson Strathern’s Lorraine Currie (Director) presented a session on managing vexatious requests at the conference.

Scottish Government’s Consultation on FOI reform

We reported in our last FOI update that the Scottish Government had published its analysis of responses. It has since published its response to that analysis (available here). The Scottish Government has come to the view that it is not persuaded to address any improvements to FOI by primary legislation, but will instead look at using existing provisions to ensure FOI law is up to date.

Some were disappointed by the news that the Scottish Government has no current plans to introduce primary legislation to amend FOI law. For example, its analysis of responses to the consultation showed support for updating provisions on Scotland’s publication scheme duty. However, there is an intention to introduce some updates to the FOI regime through secondary legislation and Ministers are planning to consult on extending FOI to providers of care home and ‘care at home’ services (see more on this below). Further planned measures include a review of the public bodies covered by FOISA and a revision to FOISA’s Section 60 Code of Practice. This may provide some clarity around issues such as using WhatsApp messages under FOI law.

Consultation on the extension of FOI to care services

The Scottish Government has committed to consult on extending freedom of information to private and third sector providers of care home and ‘care at home’ services. The Government noted that there has been a particular focus on the issue of extending FOI to providers of social care services in relation to both its FOI consultation and in relation to the wider reform of social care which is being considered in the National Care Service (Scotland) Bill, and recognised that there are “clear arguments for extending FOISA to private and third sector providers of care services”.

However, it also recognised the need to work with those private and third sector organisations in the care sector, as well as to take into account the experiences of people accessing social care support and their families, and the social care workforce.

Therefore, the Scottish Government intends to conduct a full public consultation on the proposal to extend FOISA to private and third sector providers of care services. This will take place after the National Care Service (Scotland) Bill has passed. That Bill is currently at stage 2 proceedings within the Scottish Parliament.

If you need any advice about what this could mean for you or your business, please get in touch with Lorraine.Currie@andersonstrathern.co.uk.

Member’s FOI Reform Bill

We also reported in our last FOI update that Katy Clark MSP had launched a consultation for a Bill to modernise FOI and extend designation to private and third sector bodies delivering public services. The final Bill was formally lodged in December. This was accompanied by the publication of a summary of her own consultation on FOI reform. This reports that 75% of the 96 respondents to the consultation indicated support for what the proposed bill would seek to achieve.

Information on the progress of the Bill can be found on the Scottish Parliament website.

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