Freedom of information in Scotland – where are we now?

There is a lot going on in the realm of freedom of information in Scotland just now, and it can be hard to keep pace with it all. However, it’s very important that public sector organisations keep their finger on the pulse. We’ve summarised below some of the important headlines in this sector which will hopefully serve as a useful reference point.

New Scottish Information Commissioner (SIC)

The current SIC, Daren Fitzhenry, is due to stand down as SIC in October, concluding his statutory six-year term in office. The Scottish Parliament has nominated David Hamilton, the former chair of the Scottish Police Federation, to take up the role. It is expected he will start the post in October 2023.

International Right to Know Day

International Right to Know Day falls on 28 September 2023. On this day, freedom of information activists and campaigners across the world organise a variety of events or initiatives, aimed at increasing awareness of the right to access information and to campaign for open and democratic societies. The Scottish Public Information Forum will also be held on 28 September 2023 to coincide with this day. The event will include updates from the SIC, the Scottish Government and other organisations. Tickets can be booked here.

Decisions of the SIC

Evidence required for “vexatious” or “manifestly unreasonably” refusals

In Decision 064/2023 from June, a local authority argued that a request for information was “manifestly unreasonable” under the EIRs due to the work required to respond. However, the SIC found that the authority had failed to demonstrate that it would take as long as the authority claimed, or require the involvement of so many different personnel, to respond to the request. The authority had also publicly stated that it would publish the information requested, although the authority said this had been a mistake, and that its new approach following a previous data breach was to publish only a summary of the information. The SIC found that this did not justify a conclusion that to disclose the information would impose a significant burden on the authority and so, in the circumstances, the request was not “manifestly unreasonable”.

Lorraine Currie, Director at Anderson Strathern and one of only five solicitors in Scotland accredited by the Law Society of Scotland as a specialist in Freedom of Information and Data Protection Law, will be delivering a masterclass in managing vexatious requests at the Holyrood Freedom of Information Conference on 28 November 2023. Book your place at the conference here.

Definition of “Scottish public authority”

In its Decision 051/2023 published in May this year, the SIC reminded us that the definition of “Scottish public authority” is wider in the Environmental Information (Scotland) Regulations 2004 (EIRs), than it is in the Freedom of Information (Scotland) Act 2002 (FOISA). The EIRs are based on an EU Directive, which was based on a UN Treaty, and the definition of “public authority” is wider under the Directive and Treaty than under FOISA. This means that the EIRs potentially apply to more bodies than FOISA does.

The “future publication” exemption

Decision 055/2023 published in June involved consideration of one of less commonly used exemptions: the “future publication” exemption. Section 27(1) of FOISA allows authorities to withhold information if they plan to publish it within 12 weeks, provided it is reasonable to withhold it for that time, and the balance of public interest doesn’t favour disclosure. For the exemption to apply, authorities must be able to demonstrate that publication within 12-weeks was intended when the request was received. The SIC found in this instance that the authority was not able to demonstrate its intent to publish information within 12 weeks of the request being received and was therefore not entitled to rely on the “future publication” exemption.

Consultations and reform

Two consultations with the aim of improving and enhancing freedom of information law in Scotland have progressed. The first consultation to launch was a wide-reaching proposal for a Member’s Bill to reform freedom of information law by Katy Clark MSP. This was followed shortly by the Scottish Government’s own consultation on freedom of information rights, which takes forward the recommendations made during the Scottish Parliament’s post-legislative security of FOISA in 2019/20. The Scottish Government has now published a report on its consultation, and a report on the Member’s Bill consultation is expected to be published by the office of Katy Clark MSP.

The Scottish Government’s report provides a summary of views in respect to three main issues: the agility of the freedom of information regime, ensuring rights in the face of developments in information technology and improving proactive publication. The consultation had sought views on specific areas of the freedom of information regime, such as whether additional bodies should be brought within the scope of freedom of information law and the impact of technological developments on freedom of information rights.

The consultation for the proposed Member’s Bill includes reforms which its proposer, Katy Clak MSP, says are needed to “close legal loopholes, build institutions which are accountable and transparent, and ensure the public’s enforceable right to access information is robust”. It introduces a number of proposals such as the extension of freedom of information law to all bodies delivering public services (to include private sector organisations to whom public sector contracts are awarded), the creation of a new statutory Freedom of Information Officer role, and a review of the definition of ‘information’.

The parliamentary mechanisms mean that for the Member’s Bill to proceed, it will need support across parliament from at least 18 MSPs, and if the Government commits to reform freedom of information law in much the same way, it can effectively block the proposed Member’s Bill. However, we note that the Programme for Government (2023/24) announced on 5 September did not include any bill on freedom of information reform.

In the meantime, a consultation on the Regulation of Legal Services (Scotland) Bill recently closed, which included a proposal to make the Law Society of Scotland subject to freedom of information law in relation to its regulatory functions.

If there is anything you would like to discuss with us regarding freedom of information, please get in touch with Lorraine Currie or another member of the public sector team for advice.