The right to know: freedom of information in Scotland
The Freedom of Information (Scotland) Act 2002 gives everyone the right to ask for any information held by a Scottish public authority. This briefing explains the 2002 Act and key features of the freedom of information regime in Scotland. It also considers recent policy and legislative proposals to change the freedom of information regime in Scotland.
Summary
The Freedom of Information (Scotland) Act 2002 (FOISA) grants individuals the right to access recorded information held by Scottish public authorities. Under FOISA, public authorities must disclose requested information unless specific conditions or exemptions apply.
The Environmental Information (Scotland) Regulations 2004 (EIRs) provide a separate regime for accessing environmental information. Additionally, the INSPIRE (Scotland) Regulations 2009 require public authorities to make spatial datasets publicly available.
The Scottish Information Commissioner is an independent public official responsible for promoting and enforcing Scotland’s freedom of information laws. The Commissioner investigates appeals, ensures compliance with Scottish laws on freedom of information, and upholds the public’s right to information.
Since FOISA took effect on 1 January 2005, it has provided 20 years of access rights to public information. Over this period, the Scottish Information Commissioner estimates approximately 1.4 million requests have been made under FOISA and the EIRs. Scotland has seen four Scottish Information Commissioners, the passage of one amendment Bill, and the expansion of FOISA to include additional public bodies. The COVID-19 pandemic also temporarily affected the operation of the freedom of information regime.
Since 2017, both the Scottish Parliament and Scottish Government have conducted consultations on potential FOISA reforms, prompted by post-legislative scrutiny from the Session 5 Scottish Parliament Public Audit and Post-legislative Scrutiny Committee. While the Scottish Government has opted not to introduce legislative reforms, Katy Clark MSP has secured the right to propose the Freedom of Information Reform (Scotland) Bill, keeping the prospect of legislative change open.
Freedom of information
Freedom of information, or FOI, typically refers to the rights of individuals to access information held by public authorities, including the government.1 This principle is enshrined in various laws worldwide, allowing people to request and receive information from public authorities, and is widely considered as fundamental to democratic governance and public sector transparency.1
Freedom of information is closely linked to the right to freedom of expression, which is protected under several international human rights treaties.1 For example, Article 19 of the Universal Declaration of Human Rights states:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
United Nations. (1948). Universal Declaration of Human Rights. Retrieved from https://www.un.org/en/about-us/universal-declaration-of-human-rights [accessed 31 January 2025]
Similar rights are enshrined in Article 10 of the European Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights.56
Freedom of information in Scotland
There are several laws governing freedom of information in Scotland. The main law is the Freedom of Information (Scotland) Act 2002 (FOISA).1 This gives a right of access to recorded information. Under FOISA, a person who requests information from a public authority in Scotland is entitled to be given the information, subject to some conditions and exemptions.1
FOISA also enabled Scottish Ministers to make the Environmental Information (Scotland) Regulations 2004 (the EIRs) which provide a regime to access environmental information.1
The Scottish Information Commissioner, as established by FOISA, is an independent public official responsible for promoting and enforcing freedom of information laws in Scotland.1 The Commissioner investigates appeals, promotes the public's right to know, and ensures compliance with Scottish freedom of information laws.1 In addition to FOISA and the EIRs, the Scottish Information Commissioner enforces the INSPIRE (Scotland) Regulations 2009, which require Scottish public authorities to make spatial datasets available.6
UK Government departments and cross-border public authorities operating in Scotland are not covered by FOISA, but are instead covered by the UK Freedom of Information Act 2000.7 The Information Commissioner's Office enforces UK-wide freedom of information legislation.i7
This briefing explains the provisions of FOISA and key features of the freedom of information regime in Scotland, including the EIRs. It covers the 20 years that freedom of information has been in law in Scotland and also considers recent policy and legislative proposals to change the freedom of information regime in Scotland.
The Freedom of Information (Scotland) Act 2002
The Freedom of Information (Scotland) Bill was introduced to the Scottish Parliament on 27 September 2001.1 It was passed on 24 April 2002 and received Royal Assent on 28 May 2002, becoming the Freedom of Information (Scotland) Act 2002 (FOISA).1 The Act came into force on 1 January 2005.3
The right to information
Section 1 of FOISA, known as the the general entitlement, grants people the right to access information held by Scottish public authorities.1 Specifically, section 1(1) states:
A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.
Freedom of Information (Scotland) Act. (2002). Retrieved from https://www.legislation.gov.uk/asp/2002/13/contents [accessed 1 October 2024]
The right to information under FOISA applies regardless of residency or citizenship status.i Children can also exercise their right to information under FOISA.ii1
FOISA defines information as "information recorded in any form".1 This means that applicants may request information from any recorded medium, including audio files, photographs, plans, spreadsheets, and handwritten notes.5 However, FOISA does not cover unrecorded information, such as verbal conversations between public authority officials that were not documented or included in meeting minutes.5
While FOISA provides a broad right to access information, this right is not unlimited. Certain information is exempt from disclosure under the Act.5 The "exemptions" and their application are discussed in the section: Information exempt from disclosure.
Making an information request
Information requesters, known as 'applicants', do not have to cite FOISA in submitting an information request.1 A request is valid, in accordance with section 8 of FOISA, if it:1
is in a recordable format that can be retained for future reference (e.g., letter, email, voice recording)
includes the applicant's full name
provides a correspondence address
clearly describes the information being sought.
An information request can be made by an agent on behalf of someone else.3 However, the request must include the true applicant's name to be considered valid.3
The request must specify the information being requested in a way that allows the public authority to identify and retrieve it.1 This is because FOISA entitles applicants to the information itself, rather than documents (even though documents are often provided in response to requests).3i Public authorities, under section 1(3) of FOISA, can ask applicants for further detail on their request in order to identify and locate the information in question.1 They also have a duty, under section 15 of FOISA, to provide advice and assistance to applicants both before and after an information request is made.1
Scottish public authorities
An information request under FOISA can be made to a "Scottish public authority", as defined in section 3(1) of the Act.1 This term refers to any body, officeholder, or other person that meets one of the following criteria:1
is listed in schedule 1 of FOISA
is designated by order under section 5(1) of FOISA
is classified as a publicly-owned company, as defined in section 6 of FOISA.
Bodies listed in schedule 1 of FOISA
Most of the types of public authorities covered by FOISA are listed in schedule 1. Generally, if a body is a public authority under the Act, it will be listed in schedule 1 of FOISA.i This list is structured into seven parts:ii1
Part 1: Ministers, The Parliament (e.g., Scottish Government, Scottish Parliament)
Part 2: Non Ministerial Office Holders in the Scottish Administration (e.g., Chief Medical Officer, Keeper of Records of Scotland, Procurator Fiscal)
Part 3: Local Government (e.g., local authorities as defined by Local Government etc. (Scotland) Act 1994)
Part 4: The National Health Service (e.g., health boards as constituted under the National Health Service (Scotland) Act 1978)
Part 5: Educational institutions (e.g., colleges and universities as defined by other Acts)
Part 6: Police (e.g., a Chief Constable of the Police Service of Scotland)
Part 7: Others.
Bodies can be added or removed from schedule 1 in several ways, including through primary legislation and using powers provided for in section 4 of FOISA. These powers are explained in the section: Amending the schedule 1 list of public authorities.
Bodies designated by order under section 5(1) of FOISA
Scottish Ministers can designate bodies which are not listed in schedule 1, and are not capable of being added to schedule 1, using powers provided for by section 4 of FOISA if the bodies "exercise functions of a public nature".1 This power is explained in Designating a new public authority using the section 5 order making power.
Publicly-owned companies
Publicly-owned companies are defined in section 6 of FOISA.1 These companies are not listed in schedule 1 of the Act. A company is a publicly-owned company subject to FOISA if it is "wholly owned" by Scottish Ministers or by one or more other public authorities listed in schedule 1.1
A company is considered wholly owned by the Scottish Ministers if all its members are either the Scottish Ministers, companies wholly owned by Scottish Ministers, or persons acting on behalf of the Ministers or those companies.1 Similarly, a company is considered wholly owned by any other public authority if all its members are either the public authority itself, companies entirely owned by the public authority, or persons acting on behalf of the public authority or its companies.1 Companies which are jointly owned by one or more public authorities (excluding the Scottish Ministers) are also considered wholly owned for the purposes of FOISA.
The section 6 definition does not apply to public authorities listed in schedule 1 which are only subject to FOISA's provisions in relation to certain functions.1 The circumstances under which Scottish Ministers may limit the application of FOISA to certain information held by a public authority are discussed in the section: Limiting the application of the Act to certain public authority functions.
Additionally, the definition does not include jointly owned companies (i.e., companies owned by Scottish Ministers and a public authority listed in schedule 1). This issue was raised during post-legislative scrutiny of FOISA and is discussed in the section: Post-legislative scrutiny of the Freedom of Information (Scotland) Act.
Powers to change the bodies covered by freedom of information legislation
As mentioned in Scottish public authorities, FOISA makes provision for amending the bodies subject to it. This section covers Scottish Ministers' powers to:
amend the schedule 1 list of public authorities
designate a new public authority using the section 5 order-making power
limit the application of FOISA to certain functions of a public authority.
Proactive publication and the publication scheme duty
FOISA requires Scottish public authorities to publish information proactively under the section 23 "publication scheme duty".1 Each public authority is also required to adopt and maintain a "publication scheme" setting out how it intends to publish the different classes of information it holds, and whether there is to be a charge for the information.1 Under this duty, all Scottish public authorities must produce a Guide to Information that shows:3
the information they already make available or intend to make available
where to find the information
whether the published information is available free of charge or for a fee.
When publishing information, section 24(3) of FOISA requires authorities to consider the public interest in allowing public access to a range of information.1 This includes information on the services it provides, the cost and standard of those services, the reasons for its decisions and the information which has informed those decisions.1
Section 24 of FOISA allows the development of a model publication scheme which can then be adopted by public authorities.1 The Scottish Information Commissioner’s Model Publication Scheme (MPS) was approved on 1 November 2018 and a revised MPS was published in March 2021. 7
Public authorities are required to review their schemes periodically.1 If a public authority is not using an approved scheme, or is not following good practice, the Scottish Information Commissioner can refuse or revoke approval for a publication scheme, issue practice recommendations, and take enforcement action.1
Time for compliance with an information request
Public authorities are required under section 10(1) of FOISA to comply with the information request "promptly" and have a maximum of 20 working days to respond.1i The twenty working day deadline "resets" back to zero when public authorities ask for reasonable clarification on an unclear request and does not "restart" until the public authority receives a clear request.3
Scottish Ministers may make regulations under section 10 of FOISA to extend the time for compliance under FOISA (up to 60 working days).1 For example, the Freedom of Information (Scotland) Act 2002 (Time for Compliance) Regulations 2016 extends the response time for grant-aided schools and independent special schools to account for the impact of school holiday periods.5
Fees and excessive cost of compliance provisions
Public authorities tend to provide information requested under FOISA free of charge but they are permitted to charge fees for processing information requests.1 The Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 ("the Fees Regulations") set out how and when fees can be applied.1
If an authority decides to charge a fee, it must issue a fees notice setting out the projected costs of complying with the request within 20 working days of receiving the request.1 Issuing a fees notice does not change the time for compliance under FOISA.1 The Scottish Information Commissioner explains in guidance how the time for compliance is affected when a fees notice is issued:
Once a fees notice has been issued, the clock stops when it comes to calculating the 20 working days to respond to a request. The clock starts again on the day the fees notice has been paid. So, if a public authority gives a requester a fees notice on day 15, the public authority will only have five more working days to provide the information once the fees notice has been paid. This means it’s good practice for public authorities to issue a fees notice as soon as possible after receiving an information request.
Scottish Information Commissioner. (2023). FOISA Guidance Charging a fee or refusing to comply with a request on excessive cost grounds. Retrieved from https://www.foi.scot/sites/default/files/2022-03/FeesandExcessiveCostofComplianceBriefing.pdf [accessed 31 March 2025]
The information requester then has three months from the date the fees notice is issued to pay.6 If payment is not received, the public authority is not required to process the request.1 Fees can only reflect the costs incurred by the authority in locating, retrieving, and providing the information.1 Public authorities cannot charge for:1
determining whether they hold the information
deciding whether to disclose or redact information
consulting with third parties (e.g., public authority contractors) on disclosure.
However, they can charge for:1
staff time spent locating and retrieving information (at a maximum hourly rate of £15 per hour)
the cost of physically providing the information (e.g., photocopying, postage).
The Fees Regulations set out the following cost limits:6
if a request costs £100 or less, the public authority must provide the information free of charge
if a request costs between £100 and £600, the requester may be charged 10% of the costs exceeding £100, up to a maximum of £600
if a request exceeds £600, the public authority is not required to comply but must notify the applicant that it is not obliged to fulfill the request.
For costs exceeding £600, the public authority also has a duty under section 15 of FOISA to assist applicants in refining their request to bring it under the cost threshold.1
A public authority can, with the agreement of the requester, respond to an information request that costs more than £600 to comply with.1 In this case, under the Freedom of Information (Fees for Disclosure under Section 13) (Scotland) Regulations 2004, a public authority can charge £50 plus the amount by which the projected costs exceeds £600.1
Appealing to the Scottish Information Commissioner about fees or cost
If a public authority issues a fees notice or refuses a request due to cost, the information requester has the right to challenge the decision (see Enforcement of the freedom of information regime).15 First, they can request a review by the public authority. If they remain dissatisfied with the outcome, they can appeal to the Scottish Information Commissioner.
The Scottish Information Commissioner may require the public authority to comply with the request if it fails to justify its cost estimate.1 However, if the Scottish Information Commissioner agrees that compliance would exceed £600, it cannot require the authority to disclose the requested information.1
Format of response to information request
Under section 11 of FOISA, information requesters can specify their preferred format for receiving information.1 For example, someone may request a printed copy of a digital document.2 Public authorities must accommodate these preferences where reasonably practicable.1 If they do accommodate the information requester's preferences, they can take account of any associated costs when considering fees and charging under FOISA.4 However, public authorities cannot charge for providing information in a preferred format if it is required to make reasonable adjustments for disabled people under the Equality Act 2010.4
Responses to information requests
When responding to an information request, a public authority may offer different types of responses depending on the circumstances. These responses include:
providing all the information held by the public authority as requested by the applicant
refusing the request, either in full or in part. Reasons for refusal include:
the requested information, or part of it, is not held by the public authority
the information, or part of it, is exempt from disclosure under FOISA
the cost of providing the information exceeds £600
the request is deemed vexatious or repeated.
Information held by public authorities
When information is to be disclosed under FOISA, section 1(4) of the Act specifies that:
the information to be given by the authority is that held by it at the time the request is received.
Freedom of Information (Scotland) Act. (2002). Retrieved from https://www.legislation.gov.uk/asp/2002/13/contents [accessed 1 October 2024]
However, information does not need to be physically held by a public authority in order to be "held" for the purposes of FOISA.2 For example, information which is held on a public authority official's personal device, or on informal communication tools (e.g., WhatsApp), will be held for the purposes of FOISA where the information relates to the official business of the public authority.3
Section 3(2) of FOISA
Section 3(2) of FOISA defines when, for the purposes of the Act, information is considered to be held by an authority.4 The Scottish Information Commissioner states in guidance on the matter that:
Good records management is required in order to be sure what information is held within an authority.
Scottish Information Commissioner. (2021). FOISA Exemption Guidance Section 17: Information not held. Retrieved from https://www.foi.scot/sites/default/files/2022-03/BriefingSection17Informationnotheld.pdf [accessed 11 February 2025]
For example, information which a public authority has in its possession is not "held" by it for the purposes of FOISA if it is held on behalf of another person.1 This is the case for certain information held about the work of MSPsi and Councillors by the Parliament and Councils, respectively.2 The Scottish Information Commissioner states in guidance:
[...] councillors and MSPs are not public authorities in their own right, and do not hold information for the purposes of FOISA. However, information about their activities is often created and stored by the Council or Parliament. Where this relates to constituency and party political activities, the information is held on behalf of the elected member.
Where the information relates to activities which the elected member has undertaken on behalf of the authority in connection with its corporate functions, or where the information is intended to represent the authority’s views and interests, it is held by the authority in its own right.
Scottish Information Commissioner. (2021). FOISA Exemption Guidance Section 17: Information not held. Retrieved from https://www.foi.scot/sites/default/files/2022-03/BriefingSection17Informationnotheld.pdf [accessed 11 February 2025]
However, information that another person holds on behalf of a public authority is "held" by that public authority.1 For example, information held by a commercial storage company on behalf of a public authority would be held by that authority for the purposes of FOISA. Finally, information is not "held" by a public authority if it is held in confidence and was supplied by a Minister of the Crown or a department of the UK Government.1
The status of deleted information
Deleted information may also be considered as “held” for the purposes of FOISA if it can be re-accessed or restored (e.g., via a “recycling bin” or “recently deleted folder”).2 However, section 1(4) allows the public authority to make changes or deletions to the information if it would have done so anyway, regardless of the receipt of the request.1 This provision is to support records management in the public authority.4
That being said, FOISA is clear that deletion of information should not be used to circumvent the release of information.14 Section 1(5) of FOISA sets out the information:
Is not, [...], to be destroyed before it can be given (unless the circumstances are such that it is not reasonably practicable to prevent such destruction from occurring).
Freedom of Information (Scotland) Act. (2002). Retrieved from https://www.legislation.gov.uk/asp/2002/13/contents [accessed 1 October 2024]
Section 65 of FOISA also makes it a criminal offence to alter, deface, block, erase, destroy or conceal information with intent to prevent disclosure following an information request being made.1
Refusal of information request
As discussed in the section on Responses to information requests, public authorities may refuse an information request (or part of it) for several reasons, including:
the information, or part of it, is not held by the public authority
the cost of providing the information exceeds £600
the information, or part of it, is exempt from disclosure
the request is deemed vexatious or repeated.
If the public authority refuses a request on any of these grounds, a refusal notice must be issued to the applicant within 20 working days of the request being received or sufficiently clarified.1 The refusal notice must also specify the details of the complaints procedure operated by the authority, the right to an internal review (under section 20(1) of FOISA), and the right of appeal to the Scottish Information Commissioner (under section 47(1) of FOISA).1
For information on review and enforcement mechanisms, please refer to the section on Enforcement of the freedom of information regime.
Information exempt from disclosure
The right of access to recorded information may be restricted if an "exemption" applies. Part 2 (sections 25 to 41) of FOISA provides for the exemptions.1 When an exemption is applied to an information request, the refusal notice must:1
inform the applicant that the requested information is held by the authority
confirm that the authority is claiming that all or part of the information requested is exempt
specify which exemption(s) under Part 2 of FOISA is being applied
provide reasons for applying the exemption(s).
An exemption can be "absolute" or "qualified".1
Absolute exemptions apply to classes of information specified in section 2(2) of FOISA.1
Qualified exemptions apply to all other classes of information provided for in Part 2 of FOISA.1 Qualified exemptions are subject to the public interest test, which requires that information covered by the exemption is disclosed unless the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.
Section 66 of FOISA states:
Nothing in this Act is to be taken to limit the powers of a Scottish public authority to disclose information held by it.
Freedom of Information (Scotland) Act. (2002). Retrieved from https://www.legislation.gov.uk/asp/2002/13/contents [accessed 1 October 2024]
This means that FOISA does not prevent public authorities from disclosing requested information if they choose to do so.7 However, the public authority could be in breach of other legislation (e.g., data protection legislation) if it does not apply a relevant exemption.7
Absolute exemptions
The absolute exemptions are specified in section 2(2) of FOISA and include:1
Qualified exemptions
Exemptions subject to the public interest test are known as qualified exemptions.1 The following exemptions are subject to the public interest test:2
Section 30: Prejudice to effective conduct of public affairs
Section 36: Confidentiality (only section 36(1) is subject to the public interest test)
Section 41: Communications with His Majesty etc. and honours.
If an exemption is subject to the public interest test this means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.1
Historical records
As outlined in Information transferred to the Keeper of the Records of Scotland, information contained in records can be accessed under FOISA. Additionally, not all exemptions are permanent.
Part 5 of FOISA (sections 57 to 59) defines "historical record" for the purposes of FOISA, sets time limits on exemptions that can be applied to information in historical records, and grants Scottish Ministers an order-making power to modify the definition of historical record or to vary the time periods during which exemptions can apply.1
Vexatious or repeated requests
Section 14(1) of FOISA provides that public authorities do not have to respond to vexatious requests.1 The Scottish Information Commissioner provides guidance on determining whether a request is vexatious:
There is no definition of “vexatious” in FOISA. The Scottish Parliament considered that the term “vexatious” was well-established in law and chose to give the Commissioner latitude to interpret the term in that context, so that the interpretation might evolve over time in light of experience and precedent.
[...]
The following factors will be relevant to a finding that a request (which may be the latest in a series of requests or other related correspondence) is vexatious if:
(i) it would impose a significant burden on the public authority.
(ii) it does not have a serious purpose or value.
(iii) it is designed to cause disruption or annoyance to the public authority.
(iv) it has the effect of harassing the public authority.
(v) it would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate.
Scottish Information Commissioner. (2023). FOISA Guidance: Vexatious or repeated requests. Retrieved from https://www.foi.scot/sites/default/files/2023-06/BriefingSection14VexatiousorRepeatedRequests2023.pdf [accessed 1 April 2025]
Similarly, section 14(2) of FOISA provides that public authorities do not have to comply with repeated requests for the same or substantially similar information unless a reasonable period has passed.1 The Scottish Information Commissioner guidance states:
It should be relatively straightforward to establish whether a request is identical or substantially similar to a previous request, but it is a judgment call whether a reasonable period of time has elapsed between requests. There is no attempt to define a “reasonable period of time” in the legislation, because it will depend on the circumstances. Considering the following two questions will help public authorities to assess whether a reasonable period of time has elapsed: (i) Has the information changed? (ii) Have the circumstances changed?
[...]
If a public authority is receiving repeated requests for particular information, it should consider pro-actively publishing the information through its publication scheme.
[...]
Section 14(2) is discretionary, not mandatory. Even if a request is repeat, it might still be good practice to comply with the request; for instance, where the requester has lost or failed to retain the information, but then realised they still need it.
Scottish Information Commissioner. (2023). FOISA Guidance: Vexatious or repeated requests. Retrieved from https://www.foi.scot/sites/default/files/2023-06/BriefingSection14VexatiousorRepeatedRequests2023.pdf [accessed 1 April 2025]
When a public authority determines that a request is vexatious or repeated, it must notify the information requester of its decision in writing.1 However, this is not required if a notice has already been given in relation to a "previous identical or substantially similar request" and it would be unreasonable to expect the public authority to issue another notice in all the circumstances of the case.1
The notice must include details of the applicant's right to ask the public authority to review its decision and right to appeal to the Scottish Information Commissioner if they remain dissatisfied.1
Enforcement of the freedom of information regime
The role of the Scottish Information Commissioner
The Scottish Information Commissioner is an independent public official responsible for enforcing and promoting FOISA.1 The Scottish Information Commissioner’s powers and duties are set out in Parts 3 and 4 of FOISA, which include responsibilities to:1
enforce FOISA and the EIRs
enforce the Codes of Practice issued under FOISA and the EIRs
provide guidance on FOISA and the EIRs to the public
promote good practice among Scottish public authorities
give advice to any person on these matters.
The Scottish Information Commissioner’s statutory functions under FOISA also include:1
approving Scottish public authorities’ publication schemes
investigating and deciding appeals, as well as enforcing decisions related to authorities’ handling of freedom of information requests
assessing, promoting, and monitoring compliance with FOISA
providing advice and assistance on access to information.
The Scottish Information Commissioner is required to publish a strategic plan every four years.1 The current strategic plan (2024–2028), published in March 2024, focuses on "supporting, sustaining, and improving" freedom of information.5
Additionally, the Scottish Information Commissioner must publish an annual report on its functions.1 The Scottish Information Commissioner can also publish special reports "from time to time" on its duties under FOISA, as was done during the COVID-19 pandemic (see Twenty years of freedom of information in Scotland).1
Governance of the Office of the Scottish Information Commissioner
The Scottish Information Commissioner is an independent officeholder of the Scottish Parliamentary Corporate Body.8 The Scottish Information Commissioner is nominated by the Scottish Parliament and formally appointed by His Majesty.1 Under FOISA, the Scottish Information Commissioner can serve a single term of up to eight years.1 The Scottish Parliamentary Corporate Body determines the specific length of the term within this limit.
The governance of, and eligibility for, the Office of the Scottish Information Commissioner is regulated by section 42 and schedule 2 of FOISA, as amended by the Scottish Parliamentary Commissions and Commissioners etc. Act 2010.1 The Scottish Parliamentary Corporate Body primarily supports the Scottish Information Commissioner by setting the terms and conditions of their appointment and annual budget.8
For more details on past and present Scottish Information Commissioners, see Twenty years of freedom of information in Scotland.
Public authority review
FOISA establishes a three-stage appeal and enforcement process.1 The first stage of which is the "requirement for review" where information requesters can ask the public authority to review its handling of an information request or lack thereof.2
Applicant requirement for review
Under section 20 of FOISA, any individual who is unhappy with how their information request has been handled can ask the public authority to review its actions regarding any part of the request.1 The request for review must be submitted in writing (or in a format that can be referred to later).1 It should include the information requester’s name and contact details, specifics of the original request, and the reasons for seeking a review.1
The requirement for review must be submitted within 40 working days of either:i1
the expiry of the 20 working day period set for responding to the original information request
the public authority's response to the original information request outside of the 20 working day period.
Public authorities have the discretion to accept a requirement for review received after the expiry of these time limits.1
Public authority review procedure
Section 21 of FOISA outlines the procedure that a public authority must follow when dealing with an applicant's requirement for review under section 20.1 The public authority must respond to the requirement for review within 20 working days of receiving it.i1 The response can confirm the initial decision, arrive at a different decision, or provide a decision if one was not reached initially.4 Public authorities are required by section 21(5) of FOISA to provide the applicant with information on applying to the Scottish Information Commissioner for a decision (in the event they are unhappy with the review outcome) and appealing to the Court of Session thereafter, alongside the response to the requirement for review.1
A public authority is not required to carry out a requirement for review if it believes the requirement for review is “vexatious” or if the request to which the requirement for review relates is “repeated”.1 If the public authority decides not to conduct a review, it must respond to the applicant within 20 working days and indicate that the requirement for review is considered vexatious or repeated.i4 The response must include the procedures for applying to the Scottish Information Commissioner and appealing to the Court of Session.4
Applicants can withdraw their requirement for review at any time by providing written notice.4
Scottish Ministers' section 20 and 21 powers
Scottish Ministers have powers under section 20 and section 21 of FOISA to vary the timescales within which an applicant must require a review and within which a public authority must respond, respectively.
Appealing to the Scottish Information Commissioner
Individuals who are dissatisfied with how a public authority has handled their information request cannot pursue legal action against the authority in the courts.1 Section 55 of FOISA clarifies that the Act does not grant a right of civil action against a public authority for failing to comply with FOISA.1 Instead, information requesters can appeal to the Scottish Information Commissioner if they receive no response to their request for review or are unhappy with the outcome of the review.3 This is the second stage of FOISA's three-stage appeal and enforcement process.3 The information requester must have awaited a review response from the public authority before approaching the Scottish Information Commissioner. Appeals to the Scottish Information Commissioner should be made within six months of when the public authority should have replied to the review request or within six months of receiving a review response from the public authority.5
The Scottish Information Commissioner will investigate valid appeals.6 A valid appeal requires that the requester has undergone the public authority’s review process, provided the necessary information for the investigation, and clearly stated what they are unhappy with.7 Appeals should be made in writing (or in some other form that can be referred to later) and should state the name of the applicant and a correspondence address.5
The Scottish Information Commissioner does not have to investigate “frivolous” or “vexatious” appeals, and those appeals which are subsequently withdrawn by the requester.6 In these cases, section 49(2) of FOISA requires that the applicant is told of this and the reasons why within one month of receipt of the application or within "such other period as is reasonable in the circumstances".5
Section 48 of FOISA provides that the Scottish Information Commissioner is not able to investigate appeals about the handling of information requests by the Scottish Information Commissioner, a Procurator Fiscal, or the Lord Advocate (in the Lord Advocate's capacity as head of the criminal prosecution and investigation of deaths in Scotland).5 This means that the requirement for review is the last line of appeal under FOISA in these cases. However, the Scottish Information Commissioner may use other enforcement powers outside of the appeal process to compel good practice from these public authorities.7
The Scottish Information Commissioner operates a "four-strand" investigations process for all other appeals, the procedures of which are set out in full in its Investigations Handbook.6 The four-strand process is summarised as follows:
Scottish Information Commissioner. (2024). Investigations Handbook. Retrieved from https://www.foi.scot/sites/default/files/2023-08/Investigations_Handbook.pdf [accessed 1 April 2025]
Validation: we must ensure an appeal is valid in law before we can investigate it
Resolution: where possible we will resolve appeals without the need for a decision
Investigation: we conduct a full investigation of appeals before reaching a decision
Decision: the Commissioner issues a formal decision on the appeal.
The Scottish Information Commissioner on validation of an appeal gives notice to the public authority of the appeal, and invites the public authority to give its submissions on the appeal.1 The public authority may give information to the Scottish Information Commissioner in support of its position which is confidential and cannot be given to the applicant as part of this submission process.i1
The Scottish Information Commissioner must reach a decision within four months (or such other period as is reasonable in the circumstances) of receiving the application.5 The Scottish Information Commissioner, under section 49(4) of FOISA, can also mediate a mutually-agreed settlement between the applicant and public authority within that time.1 This is considered an informal resolution of an appeal to the Scottish Information Commissioner.1 The Scottish Information Commissioner Investigations Handbook states:
Section 49(3)(b) of FOISA requires SIC [Scottish Information Commissioner] to issue decision notices where settlement has not been effected. This suggests that Parliament expects SIC to take reasonable steps to resolve cases informally. Resolution may be initiated by either party or by the IO [Investigating Officer] (subject to the considerations set out below) at any point during the investigation.
Scottish Information Commissioner. (2024). Investigations Handbook. Retrieved from https://www.foi.scot/sites/default/files/2023-08/Investigations_Handbook.pdf [accessed 1 April 2025]
The same decision notice should be given to the applicant and public authority.5 Under section 49(6) of FOISA, where the Scottish Information Commissioner finds that a public authority has not dealt with an information request in accordance with Part 1 of FOISA, the decision notice must contain details of the failure, the remedy, and the time within which such action must be taken.5 The decision notice must also inform the applicant and public authority that they can appeal the Scottish Information Commissioner's decision to the Court of Session on a point of law.5 The timescales set in the decision notice are not allowed to expire before the end of the period within which an appeal can be made to the Court of Session under section 56 of FOISA.5 At present, this is within 42 days of the decision notice being intimated.28
The Scottish Information Commissioner publishes its decisions on its website.
Codes of Practice
Two Codes of Practice are issued under FOISA (by Scottish Ministers) to provide guidance to public authorities on responding to requests for information and associated matters (section 60 Code of Practice) and on records management (section 61 Code of Practice).1
The section 60 and 61 Codes of Practice can be revised from "time to time".1 The Scottish Information Commissioner must be consulted before the new Codes of Practice are issued.1 Scottish Ministers committed to updating the section 60 and section 61 Codes of Practice as part of the Scottish Government's freedom of information policy objectives for 2024 to 2026 (see The future of freedom of information in Scotland).4
The Scottish Information Commissioner can issue a practice recommendation under section 44 of FOISA if a public authority is not conforming with the Codes of Practice.1 The practice recommendations issued by the Scottish Information Commissioner are published.
Section 60 Code of Practice: Good freedom of information practice
The section 60 Code of Practice on the discharge of functions by Scottish public authorities was first issued by Scottish Ministers on 6 September 2004 and the most recent was issued on 1 December 2016.1 It sets out guidance that public authorities should follow in the discharge of their duties under FOISA.1 Section 60(2) specifies that the following matters must be considered in the Code of Practice:3
the advice and assistance that should be given to applicants
the transferring of requests (under the EIRs)
making third parties (e.g., contractors) aware of the public authority's duties under FOISA
the disclosure of information relating to contracts or procurement processes
procedures for dealing with complaints
procedures for collection and recording of statistics by public authorities
locating and retrieving information, including record keeping.
The section 60 Code of Practice is also issued under Regulation 18 of the EIRs, and incorporates guidance on public authorities' duties to publish and make environmental information available.1
Section 61 Code of Practice: Records management and freedom of information
Given the complexity that may sometimes be involved in determining whether information is held by a public authority and the various mediums and platforms that information may be held on, public authorities should adopt good records management practice to support the release of information under FOISA.1 There is provision in FOISA and the Public Records (Scotland) Act 2011 to support this.
Scottish Ministers issue the section 61 Code of Practice under FOISA to provide guidance to public authorities on the keeping, management, and disposal of records.2 The first Code of Practice was issued on 10 November 2003 and the most recent was issued on 16 December 2011.3 The section 61 Code of Practice states:
Freedom of information legislation is only as good as the quality of the records and other information to which it provides access. Access rights are of limited value if information cannot be found when requested or, when found, cannot be relied upon as authoritative. Good records and information management benefits those requesting information because it provides some assurance that the information provided will be complete and reliable. It benefits those holding the requested information because it enables them to locate and retrieve it easily within the statutory timescales or to explain why it is not held.
Scottish Government. (2011). Section 61 code of practice on records management. Retrieved from https://www.gov.scot/publications/code-of-practice-on-records-management/ [accessed 24 March 2025]
The Public Records (Scotland) Act 2011 sets out the requirements on certain public authorities in relation to records management.5 Public authorities are under a duty through the 2011 Act to produce and submit a records management plan for agreement by the Keeper of the Records of Scotland.5 The records management plan should set out:5
the individual responsible for managing the public authority’s records
the procedures for managing and maintaining the security of the public authority’s records
how records will be archived, disposed of, or destroyed by the public authority.
Official records management plans may also be supplemented with the public authority’s own policies for managing information that is not minuted and captured as the official record.1
The Scottish Information Commissioner and Keeper of the Records of Scotland have responsibilities under section 44 of FOISA to support good practice in records management.1 These responsibilities are supported by a Memorandum of Understanding between the Scottish Information Commissioner and Keeper of the Records of Scotland, signed in May 2014, which sets out the offices' mutual understanding on the operation of the section 61 Code of Practice and cooperation between the offices on practice assessments and recommendations.10
The Scottish Information Commissioner must periodically consult the Keeper on the adherence of Scottish public authorities to the section 61 Code of Practice.2 In cases where it appears to the Scottish Information Commissioner that a public authority’s practices deviate from the Code of Practice, the Scottish Information Commissioner may issue a “practice recommendation”.2 This written recommendation specifies the areas where the public authority is not conforming with good practice and outlines the necessary steps to be taken in order to conform.2 The Scottish Information Commissioner must consult with the Keeper of the Records of Scotland before issuing such recommendations.2
There is substantial overlap between the section 61 Code of Practice and the Public Records (Scotland) Act 2011.1 The Scottish Government previously wrote in evidence to the Parliament's Session 5 Public Audit and Post-legislative Scrutiny Committee that:
Given the existence of bespoke modern records management legislation, which was informed by the experience of operating FOISA, we suggest that the section 61 Code may now be otiose. We think that it is sensible to remove unnecessary duplication, and that it would be desirable for records management guidance to be issued by the Keeper of the Records rather than the Scottish Ministers, and so propose the repeal of the section 61 duty.
The Scottish Parliament. (2019). Submission from the Scottish Government to the Public Audit and Post-legislative Scrutiny Committee. Retrieved from https://webarchive.nrscotland.gov.uk/3/archive2021.parliament.scot/S5_Public_Audit/General%20Documents/11_Scottish_Government.pdf [accessed 25 March 2025]
Scottish Ministers have not taken steps to repeal the section 61 duty and compliance with the section 61 Code of Practice continues to be assessed by the Scottish Information Commissioner (e.g., in relation to information held on third party messaging platforms).
Information notices
The Scottish Information Commissioner can issue an "information notice" under section 50 of FOISA if information is required from a public authority to deal with an appeal to the Scottish Information Commissioner, or where the Scottish Information Commissioner "reasonably requires information" to determine whether a public authority is complying with FOISA or the Codes of Practice.1
The information notice to the public authority details what information must be provided, the timeframe within which it is to be provided, and the right of appeal to the Court of Session on a point of law.1 The deadline for compliance cannot expire before the period within which the public authority can appeal to the Court of Session ends.1 The information notice can request recorded and unrecorded information.1 However, public authorities do not have to share legally privileged communications—that is, confidential discussions between a lawyer and their client about FOISA compliance or legal proceedings.1
Interventions and enforcement notices
The Scottish Information Commissioner can initiate "interventions" with public authorities to support good practice and compliance with FOISA.1 Good practice encompasses how requests are responded to, the giving of advice and assistance by authorities, proactive publication, and records management.2 The circumstances which may result in an intervention can range from a self-referral by a public authority to one initiated by the Scottish Information Commissioner in line with the Scottish Information Commissioner Enforcement Policy.1 Interventions are graded as follows:1
Non-compliance notification: minor failure to follow good practice
Level 1: failure to follow good practice
Level 2: practice failure
Level 3: serious systemic practice failure
Level 4: consistent, ongoing failure to comply with freedom of information law and guidance.
The Scottish Information Commissioner can also issue a "practice recommendation" if a public authority appears not to be conforming to the good practice described by the Scottish Ministers' Codes of Practice under sections 60 and 61 of FOISA.5 The Scottish Information Commissioner publishes information on practice recommendations issued.
If the Scottish Information Commissioner determines that a public authority has failed to comply with FOISA, they have the power to issue an "enforcement notice" under section 51 of FOISA.5 This notice instructs the authority to take specific actions within a set time frame to correct the failure and comply with the law.5 The enforcement notice must clearly state which provision of FOISA has been breached and explain how the authority has failed to meet its obligations.5 It must also inform the authority of its right to appeal to the Court of Session on a point of law under section 56 of the FOISA.5 The deadline for compliance cannot expire before the period within which the public authority can appeal to the Court of Session ends.5 The Scottish Information Commissioner also has the discretion to cancel an enforcement notice at any time by notifying the public authority in writing.5
The Scottish Information Commissioner publishes information on enforcement notices issued under section 51 of FOISA.
The First Ministerial "veto" of Scottish Information Commissioner decisions
Section 52 of FOISA gives the First Minister the power to "veto" certain decisions made by the Scottish Information Commissioner in cases where the requested information is deemed of "exceptional sensitivity".1 This power applies only when the Scottish Information Commissioner has issued a decision or enforcement notice to the Scottish Administration.i1
For this power to be used, the decision or enforcement notice must relate to information exempt from disclosure under:1
The First Minister, after consulting other members of the Scottish Government, can issue a certificate within 30 working days of the relevant notice or, in the event of an appeal to the Court of Session, within 30 working days of the cause being determined.1 Once the certificate is issued, the decision or enforcement notice ceases to have effect.1 A copy of the certificate must be laid in Parliament within 10 working days of the certificate being issued.1 Additionally, if the certificate relates to a decision notice, the First Minister must inform the applicant who originally requested the information of the reasons for the decision unless doing so would disclose exempt information.1
This power has, at the time of writing, never been used.
Scottish Information Commissioner powers of entry and inspection
The Scottish Information Commissioner has powers of entry and inspection.1 These powers are given effect by section 54 of FOISA and are set out in schedule 3.1 The Scottish Information Commissioner may seek a warrant for entry and inspection where there are reasonable grounds for suspecting that a public authority has failed (or is failing) to comply with:1
any of the provisions of Part 1 of FOISA (which governs the right of access to information held by public authorities)
the steps required of a public authority within a decision notice issued under section 49 of FOISA
an information or enforcement notice issued under FOISA.
The Scottish Information Commissioner may also seek a warrant where there are reasonable grounds for suspecting that an offence under section 65 of FOISA has been or is being committed.i1
These powers of entry and inspection have not been used (to date of publication) since FOISA came into force.
The Environmental Information (Scotland) Regulations 2004: Access to information about the environment
Members of the public in the UK had certain rights to access environmental information before general information rights were introduced in the UK and Scotland under the Freedom of Information Act 2000 and FOISA, respectively. These rights were established by the Environmental Information Regulations, which were first introduced in 1992 and later amended in 1998, granting the public the right to request information related to the environment from a "relevant person" (e.g., public authorities with environmental responsibilities).12
The Environmental Information (Scotland) Regulations 2004 ("the EIRs") are the most recent regulations governing access to environmental information held by Scottish public authorities.3 Section 62 of FOISA enabled Scottish Ministers to make the EIRs.4 These regulations mandate that all Scottish public authorities must publish environmental information and provide it upon request.3 The EIRs came into force on 1 January 2005, concurrently with FOISA.3 The Scottish Information Commissioner enforces the EIRs in Scotland.3
Unlike FOISA, the EIRs are derived from an international treaty, the UNECE Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (also known as the Aarhus Convention), and EU-derived legislation.8 The Aarhus Convention, signed by the UK in 1998, grants rights to access environmental information, participate in environmental decision-making, and access justice in environmental issues.9 Scotland, via the UK, is obliged to respect and implement the Aarhus Convention. The EU adopted the Access to Environmental Information Directive (2003/4/EC) to require that its member states (as the UK was at the time) comply with the first pillar of the Aarhus Convention (which establishes rights to access information on the environment held by public authorities and requires the active dissemination of environmental information by those public authorities).10 The EIRs were made to implement the obligations arising from the Directive in Scotland and remain in effect as domestic law following the UK's departure from the EU.8
Definition of environmental information
Environmental information has a wide scope under the EIRs.1 Regulation 2(1) of the EIRs defines environmental information as having the same meaning as in Article 2(1) of the EU Environmental Information (2003/4/EC) Directive, which in turn defines environmental information as any information in written, visual, aural, electronic or any other material form on:
The Environmental Information (Scotland) Regulations. (2004). Retrieved from https://www.legislation.gov.uk/ssi/2004/520/contents [accessed 1 October 2024]
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in paragraph (a);
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements;
(d) reports on the implementation of environmental legislation;
(e) costs benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c); and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c).
The broad scope of the definition means that environmental information can encompass topics and documents not explicitly related to the environment.3 For example, contracts and press releases can all be considered environmental information. There are also no geographical restrictions on environmental information under the EIRs.1 As long as the information is held by a public authority, information about locations outside of Scotland may fall within the EIRs' definition of environmental information.1
Public authorities covered by the EIRs
Regulation 2(1) also defines a Scottish public authority. All public authorities subject to FOISA are also subject to the EIRs. The EIRs state:
“Scottish public authority” means–
The Environmental Information (Scotland) Regulations. (2004). Retrieved from https://www.legislation.gov.uk/ssi/2004/520/contents [accessed 1 October 2024]
(a) any body which, any other person who, or the holder of any office which is–
(i) listed in schedule 1 to [FOISA] (but subject to any qualification in that schedule), or
(ii) designated by order under section 5(1) of [FOISA];
(b) a publicly-owned company as defined by section 6 of [FOISA].
The definition of a public authority under the EIRs is wider than that under FOISA as the EIRs also apply to:
The Environmental Information (Scotland) Regulations. (2004). Retrieved from https://www.legislation.gov.uk/ssi/2004/520/contents [accessed 1 October 2024]
(c) any other Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998); and
(d) any other person who is neither a public body nor the holder of a public office and who is under the control of a person or body [subject to FOISA or the EIRs] and–
(i) has public responsibilities relating to the environment;
(ii) exercises functions of a public nature relating to the environment; or
(iii) provides public services relating to the environment.
Definition (c) refers to public authorities with mixed functions or no reserved functions (i.e., they are fully devolved or carry out functions assigned by both the Scottish and UK Parliaments).3 The Scottish Information Commissioner has previously decided on whether a body qualifies as a public authority under the EIRs, in Decision 097/2020, where the Lochaber District Salmon Fishery Board was deemed to meet the criteria.4 The Lochaber District Salmon Fishery Board is a district salmon fishery board established in accordance with the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. District salmon fishery boards are bodies with statutory powers and duties to protect and improve salmon fisheries within designated salmon fishery districts.5 The Scottish Information Commissioner states in Decision 097/2020:
The Board, operating wholly within a defined area of Scotland and operating entirely under an Act of the Scottish Parliament, would appear to be a body with no reserved functions.
[...]
Given the nature of the statutory scheme under which it is established, the Board would appear to be a distinct form of legal person. Given that statutory scheme, its functions relating to the protection or improvement of fisheries (with particular reference to salmon) appear to be intended as functions to be exercised in the public interest, rather than simply for the benefit of the represented proprietors. Although not essential for this part of the definition to apply, the functions would appear to be environmental in nature.
Scottish Information Commissioner. (2020). Decision 097/2020: District Salmon Fishery Board - failure to respond. Retrieved from https://www.foi.scot/decision-0972020 [accessed 1 October 2024]
Definition (d) in the EIRs allows for any body controlled by a Scottish public authority, which has environmental responsibilities, to be considered a public authority under the EIRs.3 This could include private contractors and other entities with environmental functions, like waste disposal, if they are under the control of a Scottish public authority.3
The Scottish Information Commissioner has issued several decisions concluding that a body is a public authority for the purposes of the EIRs in accordance with definition (d). In Decision 085/2011, the Scottish Information Commissioner concluded that the (now dissolved) Solway Shellfish Management Association, a company with responsibilities for the maintenance and regulation of a shellfish fishery on the Scottish Solway Firth by virtue of the Solway Firth Regulated Fishing (Scotland) Order 2006, was a public authority and held environmental information under the EIRs.9 This is because even though it was not wholly publicly owned as is required under FOISA, it was considered to have environmental responsibilities and to be under the control of Scottish Ministers.10 This determination was made on the basis that the order regulating its activities required the Association to operate with the consent of, and subject to directions from, Scottish Ministers.10 The initial information request referred to the Scottish Information Commissioner was for financial information on the company's funding and expenditure.9 The Commissioner stated that this would be considered environmental information under the EIRs, explaining:
The Commissioner takes the view that because the SSMA’s [Solway Shellfish Management Association] sole purpose is the regulation of a particular environment, it is likely that information relating to the SSMA’s activities will be environmental information because these activities affect or are likely to affect the state of the elements of the environment concerned, such as “coastal and marine areas” and “biological diversity”, both referred to in part (a) of the definition of environmental information in regulation 2(1) of the EIRs. In his view, information relating to expenditure on these activities will be information relating to these activities.
Scottish Information Commissioner. (2011). Decision 085/2011: Thomas Clark and Solway Shellfish Management Association. Retrieved from https://www.foi.scot/decision-0852011 [accessed 9 October 2024]
Housing associations represent another example of bodies qualifying as a public authority for the purposes of the EIRs in accordance with definition (d). This was determined in Decision 099/2015 where it was found that Dunbritton Housing Association was under the control of the Scottish Housing Regulator, which is itself a public authority under the EIRs.14 More recently, Abellio Scotrail Ltd was found to be subject to the EIRs on the basis that it was under the control of Scottish Ministers for the purposes of delivering the ScotRail franchise.15 The Scottish Information Commissioner states in Decision 044/2021:
Scottish Information Commissioner. (2021). Decision 044/2021: Is Abellio ScotRail Ltd subject to the EIRs?. Retrieved from https://www.foi.scot/decision-0442021 [accessed 9 October 2024]
Clearly, the delivery of a passenger rail service in Scotland is the provision of a public service. The franchise agreement in place between the Scottish Ministers and ASL [Abellio Scotrail Ltd] sets out a number of obligations it is required to meet, when delivering this service, in relation to the environment. These include a requirement to allocate funding to support research and development into innovative solutions relating to carbon and energy use reduction to address environmental issues in the railway environment. The agreement requires all proposed research and development projects to be assessed by a panel, including representatives from the Scottish Ministers. ASL is also required to carry out an energy audit in an effort to agree baselines from which energy use per passenger kilometre shall be reduced over the franchise term. The methodology for the audit is to be submitted to the Scottish Ministers.
The Commissioner also recognises that a passenger rail service is of particular importance as part of the overall public transport infrastructure in Scotland and plays a significant role in the drive to divert travellers to more sustainable modes of transport, in an effort to meet emission targets. For these reasons, the Commissioner concludes that ASL is providing a public service relating to the environment. In all the circumstances, therefore, the Commissioner finds that ASL is properly considered to be a Scottish public authority within the meaning of paragraph (d) of the definition in regulation 2(1) of the EIRs.
Both Registered Social Landlords and ScotRail were subsequently brought within the scope of FOISA. Registered Social Landlords were designated a public authority by a section 5 order in 2019,17 while ScotRail was included by becoming a wholly publicly owned company in 2022.18
Obligations under the EIRs
The EIRs require public authorities to fulfil several obligations, which are summarised in the table reproduced from Scottish Information Commissioner guidance.
| Requirement | Reference |
|---|---|
| Actively disseminate information, particularly by electronic means | regulation 4(1) |
| Make environmental information available to any person who requests it within 20 working days (40 working days if the request is voluminous and complex) | regulations 5(1) and 7(1) |
| Publish a schedule of charges and information on when a fee may be charged, waived or required to be paid in advance | regulation 8(8) |
| Provide reasonable advice and assistance to someone who has made, or wants to make, a request for environmental information | regulation 9 |
| Refuse requests only in line with the exceptions available, giving reasons and details of how to seek a review and appeal | regulations 10, 11, 13, 16, and 17 |
| Transfer requests for environmental information if the authority doesn’t hold the information, but another does or supply the name and address of the authority which does hold the information | regulation 14 |
| If asked to do so, carry out a review of a decision not to make environmental information available | regulation 16 |
Scottish Information Commissioner. (2021). EIRS Guidance Series: What do the EIRs require Scottish public authorities to do?. Retrieved from https://www.foi.scot/sites/default/files/2022-03/EIRsGuidanceAuthorityObligations.pdf [accessed 11 October 2024]
Further information on public authorities' obligations under the EIRs is provided in the following sections:
Active dissemination of environmental information
Regulation 4(1) requires Scottish public authorities take reasonable measures to organise and regularly update environmental information, as a means of ensuring environmental information is actively and systematically shared with the public.1 The regulation also requires public authorities make environmental information "progressively available" to the public through electronic means.i The Scottish Information Commissioner's guidance on public authorities' responsibilities under the EIRs indicates that the use of the term "progressively available" allows the regulations to take account of technological changes to the way information is created, stored, and shared.2
Regulation 4(2) specifies the main types of information that should be made available in this manner as:
The Environmental Information (Scotland) Regulations. (2004). Retrieved from https://www.legislation.gov.uk/ssi/2004/520/contents [accessed 1 October 2024]
(a) texts of international treaties, conventions or agreements, and of Community, national, regional or local legislation, on the environment or relating to it;
(b) policies, plans and programmes relating to the environment;
(c) progress reports on the implementation of the items referred to in sub paragraphs (a) and (b) when prepared or held by a Scottish public authority in electronic form;
(d) reports on the state of the environment;
(e) data or summaries of data derived from the monitoring of activities that affect or are likely to affect the environment;
(f) authorisations with a significant impact on the environment and environmental agreements or a reference to the place where such information can be requested or found;
(g) environmental impact studies and risk assessments concerning those elements of the environment referred to in paragraph (a) of the definition of “environmental information” in regulation 2(1); and
(h) facts and analyses of facts which the authority considers relevant and important in framing major environmental policy proposals.
As public authorities subject to FOISA are required by section 23 of that Act to adopt and maintain a publication scheme, the Scottish Information Commissioner advises (in its guidance) that public authorities subject to both FOISA and the EIRs can partially meet their obligation to actively share information under the EIRs through the maintenance of their FOISA publication scheme.2
Provision of environmental information on request
The EIRs require public authorities to respond to requests for environmental information. Under Regulation 5, public authorities holding environmental information must provide it as soon as possible and within 20 days of receiving the request.1 Regulation 7 allows public authorities to extend this period to within 40 days if the information covered by the request is both voluminous and complex.1 In such cases, the applicant must be notified in writing, given reasons for why the authority considers the information voluminous and complex, and provided with information on the review and enforcement provisions available under the EIRs.1
The EIRs stipulate how information should be provided and what additional information should be provided in certain matters. For instance, public authorities are required by Regulation 5(4) to ensure "as far as practicable" that information provided in response to a request for environmental information is "up to date, accurate and comparable".1 Similarly, under Regulation 5(5), public authorities must supply information on sampling and analysis methods if the information requested is made available and pertains to matters that affect or are likely to affect elements of the environment (i.e., matters defined in Regulation 2(1) paragraph (b)).1 Additionally, Regulation 6 obliges public authorities to provide information in the form or format requested by the applicant, unless it is unreasonable to do so or the information is already publicly available in another form or format.1
Making a request for information under FOISA and the EIRs
All requests for environmental information will technically be covered by FOISA since information is defined in the Act as "information recorded in any form".1 However, as the EIRs require public authorities to respond to requests for environmental information, it is the responsibility of public authorities to recognise when a request for information is environmental.2 Unlike FOISA, the EIRs do not specify how a valid request should be made.3 As such, verbal requests for information will normally be valid under the EIRs.3 Again, it is the responsibility of the public authority to identify when a request for environmental information has been made.3
Section 39(2) of FOISA provides for a technical exemption to allow public authorities to exempt environmental information from disclosure under FOISA so that it can be considered solely in terms of the EIRs.6 If public authorities do not claim the section 39(2) exemption for a request for environmental information, they must evaluate the request under both FOISA and the EIRs.6 This means they need to consider how the exemptions under FOISA and the exceptions under the EIRs might apply.6 Scottish Information Commissioner guidance on the exemption suggests that public authorities need only do this if they are unsure of whether or not information is environmental in nature.6 Therefore, where a request is for environmental information, the section 39(2) exemption should normally apply.
The exemption is subject to the public interest test (see The public interest test).6 This means that the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it. The Scottish Information Commissioner states in its guidance on the section 39(2) exemption:
Given the separate statutory right to access environmental information under the EIRs, the public interest in maintaining the section 39(2) exemption in FOISA will generally outweigh the public interest in disclosing environmental information under FOISA.
Scottish Information Commissioner. (2023). FOISA Guidance. Section 39: Health, Safety and the Environment. Retrieved from https://www.foi.scot/sites/default/files/2023-07/BriefingSection39HealthSafetyandtheEnvironment_2023.pdf [accessed 11 October 2024]
Exceptions under the EIRs
There are instances when the disclosure of environmental information requests may be refused under the EIRs. Such cases are known as exceptions. When an exception is applied and information is withheld from disclosure, Regulation 13 requires that public authorities provide written reasons for their decision and inform the applicant of review procedures no later than 20 working days after the date of receipt of the request.1
Overview of the exceptions in Regulation 10
Regulation 10 of the EIRs provides for the exceptions to disclosing environmental information under the EIRs.1 All exceptions under the EIRs, which are set out in Regulation 10(4) and 10(5), are subject to the public interest test (see The public interest test).i3 This means that even if an exception applies, the information must be disclosed unless the public interest in making the information available is outweighed by that in maintaining the exception.3 Regulation 10(2) also clarifies that in considering the application of an exception, the public authority should interpret the exceptions in a restrictive way and apply a presumption in favour of disclosure.1 Regulation 10(3) sets out that environmental information that is also personal data can only be made available in accordance with Regulation 11, which in turn describes the circumstances under which such data can be made available.ii1
There are two types of exception in the EIRs set out in Regulation 10(4) and Regulation 10(5), respectively: class exceptions and substantial prejudice exceptions.3 Regulation 10(4) provides for the class exceptions, which relate to the type of information held or the nature of the request.3 The regulation states:
A Scottish public authority may refuse to make environmental information available to the extent that–
The Environmental Information (Scotland) Regulations. (2004). Retrieved from https://www.legislation.gov.uk/ssi/2004/520/contents [accessed 1 October 2024]
(a) it does not hold that information when an applicant’s request is received;
(b) the request for information is manifestly unreasonable;
(c) the request for information is formulated in too general a manner and the authority has complied with its duty under regulation 9;
(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or
(e) the request involves making available internal communications.
Regulation 10(5) provides for exceptions which can only be applied if disclosure of the information would, or would be likely to cause substantial prejudice.3 The regulation states:
A Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially–
The Environmental Information (Scotland) Regulations. (2004). Retrieved from https://www.legislation.gov.uk/ssi/2004/520/contents [accessed 1 October 2024]
(a) international relations, defence, national security or public safety;
(b) the course of justice, the ability of a person to receive a fair trial or the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature;
(c) intellectual property rights;
(d) the confidentiality of the proceedings of any public authority where such confidentiality is provided for by law;
(e) the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest;
(f) the interests of the person who provided the information where that person–
(i) was not under, and could not have been put under, any legal obligation to supply the information;
(ii) did not supply it in circumstances such that it could, apart from these Regulations, be made available; and
(iii) has not consented to its disclosure; or
(g) the protection of the environment to which the information relates.
Information relating to emissions is given a special status under the EIRs.3 Some of the exceptions under the EIRs cannot be applied when the information in question relates to emissions.3 Regulation 10(6) provides that a public authority cannot rely on the following exceptions in relation to an information request about emissions:
Regulation 10(5)(d) – the confidentiality of proceedings
Regulation 10(5)(e) – the confidentiality of commercial or industrial information
Regulation 10(5)(f) – the interests of the person who provided the information
Regulation 10(5)(g) – the protection of the environment.1
Differences between EIRs and FOISA
There are key differences in how exceptions under the EIRs and exemptions under FOISA are applied. For example, in contrast to FOISA, the EIRs require the public interest test to be applied to all exceptions and grant a special status to information on emissions.1 A further difference between the two regimes is how they interact with other laws.1 For instance, section 26(a) of FOISA states that information cannot be disclosed if it is prohibited by other legislation.3 Regulation 5(3) of the EIRs on the other hand specifies that any law preventing the disclosure of environmental information under the EIRs does not apply.4 However, the information in question may still be subject to an exception.5 The EIRs also make provision in Regulation 12 for certificates to be issued by Scottish Ministers where they consider that making environmental information available would, or would be likely to, prejudice substantially national security.4
Enforcement of the EIRs
The EIRs include provisions for enforcing the regime, which link to FOISA. Regulation 17 of the EIRs sets out that the enforcement provisions of Part 4 of FOISA, including the powers of entry and inspection set out in Schedule 3, apply to the EIRs with certain modifications. These modifications allow the relevant parts of FOISA to be interpreted as references to the EIRs.1 Regulation 18(5) makes provision for functions of the Scottish Information Commissioner under FOISA to apply in relation to the EIRs.1 Taking Regulation 17 and 18 together, this means that if a public authority has not provided a response to a request for environmental information or the applicant remains unhappy with the response(s) received following a review, the applicant can appeal to the Scottish Information Commissioner for a decision.14 Applicants and public authorities can also appeal to the Court of Session if they are unhappy with the Commissioner's decision under the EIRs, but only if it is on a point of law.4
Regulation 18 also makes provision for Scottish Ministers to issue a Code of Practice on how public authorities should carry out their duties under the EIRs, including how they should manage their records.1 The Code of Practice issued under section 60 of FOISA is also issued under Regulation 18 of the EIRs (see Codes of Practice for further discussion).
Regulation 19 mirrors section 65 of FOISA to make any attempt to alter information or records (e.g., through deletion) with the intent of preventing disclosure an offence under the EIRs.1
Summary of differences between FOISA and the EIRs
The EIRs and FOISA are similar freedom of information regimes but there are differences. These difference are summarised in the table reproduced from Scottish Information Commissioner guidance.
| EIRs | FOISA | |
|---|---|---|
| Active dissemination | Authorities must:
| Authorities must adopt and maintain a publication scheme. |
| Charging | Authorities can make a reasonable charge for making the information available (but not for inspecting information). Authorities must publish a schedule of charges. | Authorities can charge for locating, retrieving and providing the information under the Fees Regulations. |
| Copies of documents | The duty to make environmental information available includes the duty to provide copies of documents. | FOISA gives people the right to access information, not documents. (In many cases, the easiest way to respond to a request is to give a copy of a document). |
| Cost limit | The EIRs don’t have an upper or lower cost limit. This means a request can’t be refused just because it would cost too much. (However, requests might be manifestly unreasonable.) With no lower cost threshold, an authority can charge for providing any information under the EIRs, providing the charge is reasonable. | An authority is not obliged to respond to a request if complying would exceed £600. An authority cannot charge for the first £100 of costs. |
| Late requests for review | Authorities can’t accept late requests for review under the EIRs. If they do – and the requester appeals to the Commissioner – the appeal will be invalid. | An authority can comply with a late request for review if it considers it appropriate to do so. |
| Emissions | Information on emissions has a special status: some of the exceptions in the EIRs can’t be used to withhold information on emissions. | No equivalent under FOISA. |
| Extending the response time | The 20 working day period for responding to a request can be extended by up to 20 working days if the volume and complexity of the information requested makes it impractical for the authority to deal with the request more quickly. | The authority must respond in 20 working days. |
| Format of request | Requests can be made in any format: verbal requests for environmental information are valid under the EIRs. | Requests must be in writing or any other format capable of having some permanency. |
| Historical records | The exceptions can be applied regardless of how old the information is. | Some exemptions can’t be applied to “historical records”. In many cases, this means information which is more than 15 years old. |
| Neither confirm nor deny | An authority can refuse to confirm or deny whether it holds:
| An authority can refuse to confirm or deny whether it holds information if one of the exemptions in sections 28 to 35, 38, 39(1) or 41 applies and revealing whether the information exists would be contrary to the public interest. |
| Prohibitions on disclosure | The EIRs trump other laws: any law which would prevent an authority making environmental information available does not apply. | Other laws trump FOISA: information is exempt if its disclosure is prohibited by other laws. |
| Public and restrictive interpretation | All of the EIRs exceptions:
| The public interest test applies to only some of the exemptions in FOISA. |
| Scottish public authority | The definition of a Scottish public authority is wider under the EIRs than FOISA. | FOISA covers:
|
| Transfer of request | The EIRs allow authorities to transfer a request to another body. | FOISA does not allow authorities to transfer requests to another authority. |
Scottish Information Commissioner. (2020). EIRS Guidance Series: Differences between FOISA and the EIRs. Retrieved from https://www.foi.scot/sites/default/files/2022-03/DifferencesbetweenEIRSandFOISA.pdf [accessed 11 October 2024]
Twenty years of freedom of information in Scotland
FOISA came into force on 1 January 2005. This legislation has now provided 20 years of rights to information from public authorities in Scotland. In that time, an estimated 1.4 million information requests have been made to public authorities under FOISA and the EIRs, four Scottish Information Commissioners have been appointed, one amendment Bill has been passed, new public bodies have been designated as public authorities under FOISA, and coronavirus legislation has impacted the operation of the freedom of information regime. This section covers the evolution of FOISA over the past two decades.
The impact of freedom of information in Scotland
The Scottish Information Commissioner estimates that 1.4 million information requests have been made to public authorities under FOISA and the EIRs since they came into force on 1 January 2005.1 Public authorities are expected, under the Section 60 Code of Practice, to record and report data on their freedom of information performance.2 In 2013, the Scottish Information Commissioner began collating this data from public authorities, which is now published on the Scottish Information Commissioner Statistics Portal. The data shows a steady increase in the number of FOISA and EIR requests until the COVID-19 pandemic, after which the number of requests began to recover and significantly increase with requests peaking in 2023-24. Although the data for 2024-25 is not yet complete at time of writing, the three quarters submitted so far suggest that information requests may increase again this year.
* Data for 2024-25 is for quarters 1 to 3.
SPICe, from Scottish Information Commissioner data
* Data for 2024-25 is for quarters 1 to 3.
SPICe, from Scottish Information Commissioner data
Four Scottish Information Commissioners
Four Scottish Information Commissioners have been appointed under FOISA so far.1
Kevin Dunion was the first Scottish Information Commissioner, nominated by the Parliament on 10 December 2002 and taking up post on 24 February 2003.2 Kevin Dunion was subsequently nominated by the Parliament for reappointment on 24 January 2008 and held the appointment until 23 February 2012.3
Scottish Parliamentary Commissions and Commissioners etc. Act 2010
Kevin Dunion is the only individual to serve two terms as the Scottish Information Commissioner. During Kevin Dunion's second term, FOISA was amended by the Scottish Parliamentary Commissions and Commissioners etc. Act 2010 to make individuals who have previously held the role of Scottish Information Commissioner ineligible for reappointment.4 The Scottish Parliamentary Commissions and Commissioners etc. Act 2010 also amended FOISA to change the term of office for the Scottish Information Commissioner.4 The term was extended from a maximum of five years to a maximum of eight years, with the length of the term determined by the Scottish Parliamentary Corporate Body at the time of appointment.4
Rosemary Agnew was nominated by the Parliament for appointment as the second Scottish Information Commissioner on 30 January 2012 and held the appointment between 1 May 2012 and 30 April 2017.7
Daren Fitzhenry was nominated by the Parliament for appointment as the third Scottish Information Commissioner on 27 June 2017 and held the appointment from 25 October 2017 and 15 October 2023.8
David Hamilton is the current Scottish Information Commissioner and was nominated by the Parliament for appointment as the fourth Scottish Information Commissioner on 28 June 2023. David Hamilton began the appointment on 16 October 2023.9
Collectively, at the time of writing, these Commissioners have issued 4208 decisions since FOISA came into force.i
Freedom of Information (Amendment) (Scotland) Act 2013
The Freedom of Information (Amendment) (Scotland) Bill was passed on 16 January 2013 and became an Act on 19 February 2013.1 It remains the only bespoke primary legislation to amend or reform FOISA to date.
The passage of the Freedom of Information (Amendment) (Scotland) Bill
The introduction of the Freedom of Information (Amendment) (Scotland) Bill followed amendments to the UK Freedom of Information Act 2000 by the UK Parliament and a Scottish Government consultation on amendments to FOISA. The policy memorandum to the Bill indicated that the proposed modifications to the Act were "limited" and "intended to add strength and clarity and improve its operation".2 A SPICe briefing on the Bill (as introduced) was published on 30 August 2012. The SPICe Bill Summary setting out the parliamentary consideration of the Bill is published on the Scottish Parliament Archive website.
Section 41 of FOISA allows public authorities to refuse to disclose information if it relates to communications with the King, the Royal Family, or the Royal Household, or if it relates to the award of honours by the King.3 The exemption is subject to the public interest test.3 The Bill, as introduced, included an amendment to bring the section 41 exemption in line with that provided for by the UK Freedom of Information Act 2000 by creating an absolute exemption for communications with Her (His) Majesty, the heir and the second in line to the throne.2 However, at Stage 2, in response to the Stage 1 Committee report and to the Stage 1 debate, a Scottish Government amendment to remove the provisions for an absolute exemption was lodged and agreed to.6 This means that information held by a public authority under FOISA may be disclosed under FOISA provided it is in the public interest to do so, but the same information held by a UK public authority may be absolutely exempt from disclosure.3
The Act amended the following sections of FOISA.8
The section 5 order making power to require the Scottish Ministers to consult relevant persons before making an order to designate a public authority under FOISA and to require Scottish Ministers to report to the Scottish Parliament on their exercise of the power.
Section 18 of FOISA to allow authorities to issue, in reply to a request for information concerning personal information, a neither confirm nor deny response.
Section 25 of FOISA, which exempts information otherwise accessible, to clarify that information which is provided in a public authority's publication scheme does not also have to be provided in response to an information request.
Section 59 of FOISA to give Scottish Ministers an order making power to reduce the lifespan of historical records, so there could be varying lengths of time for different public bodies or for different kinds of records. The only subsequent Order made using this power, the Freedom of Information (Scotland) Act 2002 (Historical Periods) Order 2013, reduced the time period after which a record becomes a historical record for FOI purposes from 30 years to 15 years, with some exceptions.9
Section 65 of FOISA to allow prosecution for the offence of altering, defacing, blocking, erasing, destroying, or concealing information subject to an information request to be made up to six months after sufficient evidence has been amassed, rather than six months after commission of the offence.
New public bodies designated under FOISA
New public bodies created or amended by other legislation have been added to schedule 1 of FOISA since the Act came into force. However, the section 5 order making power to extend coverage of FOISA had not been used prior to the enactment of the Freedom of Information (Amendment) (Scotland) Act, despite assurances during the passage of the Bill that the power would be used and several Scottish Government consultations on the matter.1 The provisions of section 5 of FOISA are explained in the section: Designating a new public authority using the section 5 order making power.
Consideration of how FOISA should be extended began shortly after the Act came into force during 2005 when the (then) Scottish Executive initiated a limited review of FOISA that included a consultation to develop "gateway criteria" for the application of section 5 powers.2 However, this process, which concluded in 2007, did not yield a consensus on the criteria for determining when a public body should fall within the scope of FOISA.2 Subsequently, between November 2008 and December 2009, a series of stakeholder discussion papers on extending FOISA were published, culminating in a formal consultation on expanding FOISA coverage in July 2010.2 The Scottish Government consulted on including the following bodies in schedule 1 of FOISA:2
contractors who run privately managed prisons and provide prisoner escort services
leisure, sport and cultural trusts and bodies used by local authorities
the Glasgow Housing Association
the Association of Chief Police Officers in Scotland
contractors who build and maintain schools
contractors who build and maintain hospitals
contractors who build, manage and maintain trunk roads under private finance contracts.
Since the enactment of the Freedom of Information (Amendment) (Scotland) Act 2013, the Scottish Ministers have made section 5 orders in 2013, 2016 and 2019.
The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2013 brought leisure, sports and cultural trusts created by local authorities under the scope of FOISA.6
The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2016 brought privately-run prisons, secure accommodation providers, grant-aided and independent special schools, and Scottish Health and Innovations Limited under the scope of FOISA.7
The Freedom of Information (Scotland) Act 2002 (Designation of Persons as Scottish Public Authorities) Order 2019 registered social landlords (housing associations) and many of their subsidiaries under the scope of FOISA, in relation to functions and services intended for the prevention and alleviation of homelessness, the management of social housing accommodation, and the provision and management of sites for gypsies and travellers.8
The most recent consultation on extending FOISA coverage was held in August 2019.9 The Scottish Government sought views on whether the scope of FOISA should be further extended to include “organisations providing services on behalf of the public sector” that are not already subject to the Act.9 However, the formal response to this consultation was delayed to allow for a broader consultation on FOISA reforms, as recommended by the Session 5 Scottish Parliament Public Audit and Post-legislative Scrutiny Committee (see the section on the future of freedom of information in Scotland for further information).9
The Scottish Government has committed to outlining how the section 5 power will be used as part of its policy objectives for freedom of information from 2024 to 2026.12 These objectives also include a commitment to consulting on the extension of FOISA to private and third sector care home providers by early 2025.12 However, at the time of writing, no such consultation has been launched. This commitment was first reported in November 2023, with the consultation expected to take place once the National Care Service (Scotland) Bill, now known as the Care Reform (Scotland) Bill, is passed.14 The anticipated consultation has not yet taken place and the Care Reform (Scotland) Bill is at Stage 3 at time of writing.15 The terms of reference for a proposed advisory group for consulting on extending freedom of information to the care sector was published on 30 April 2025 (for more information, see the section: What's next for freedom of information).16
Freedom of information during the COVID-19 Pandemic
The COVID-19 pandemic impacted freedom of information in Scotland. This section discusses the temporary amendments to FOISA during the COVID-19 pandemic and the special reports and statements published by the Scottish Information Commissioner.
Coronavirus legislation
Coronavirus (Scotland) Act 2020
The Coronavirus (Scotland) Act 2020 was the first coronavirus-related legislation to temporarily affect the freedom of information regime in Scotland.1 Under this legislation, the time limit for public authorities to respond to freedom of information requests was extended from 20 to 60 working days.1 The Scottish Information Commissioner and public authorities were also permitted to issue formal notices under FOISA electronically.1
The Coronavirus (Scotland) Act 2020 also allowed the Scottish Information Commissioner to take the impact of coronavirus on a public authority into account when it failed to comply with the timescales set out in FOISA.1 If the Scottish Information Commissioner deemed that a failure was due to coronavirus-related disruption, and that it was reasonable for the public authority not to comply with the timescales, the Scottish Information Commissioner was able to find that the public authority had not failed to comply with Part 1 of FOISA, which provides for the general right of access to information held by public authorities.1
Coronavirus (Scotland) (No. 2) Act 2020
The Coronavirus (Scotland) (No.2) Bill as introduced did not contain provisions relating to freedom of information.1 However, amendments relating to freedom of information were considered at Stage 2.1 As a result, the Coronavirus (Scotland) (No. 2) Act 2020 ("No. 2 Act") removed the extension to freedom of information deadlines provided for by the Coronavirus (Scotland) Act 2020.3 The No. 2 Act also provided that Scottish Ministers report on the freedom of information performance of the Scottish Government for as long as the temporary amendments to FOISA were in place.3
Coronavirus (Extension and Expiry) (Scotland) Act 2021
The Coronavirus (Extension and Expiry) (Scotland) Act 2021 expired the provision in the Coronavirus (Scotland) Act 2020 allowing the Scottish Information Commissioner to decide that a public authority had complied with Part 1 of FOISA in instances where a delay occurred if certain conditions were met.1 The Scottish Information Commissioner is, however, still able to take the effects of the coronavirus pandemic into account in instances where an application reaches the Commissioner for a decision under section 47(1) of FOISA in respect of a request for information made before 30 September 2021.1 However, it is unlikely that any relevant applications of this nature would now be received or taken forward given that appeals must be made to the Scottish Information Commissioner within six months.
Coronavirus (Recovery and Reform) Scotland Act 2022
The requirement on the Scottish Government to report on its freedom of information performance during the COVID-19 pandemic ended on 30 September 2022.1 The remaining temporary provision allowing formal notices under FOISA to be issued electronically was superseded by an equivalent permanent provision in the Coronavirus (Recovery and Reform) Scotland Act 2022 on 1 October 2022.2
Scottish Information Commissioner Special Reports on COVID-19 and freedom of information
Daren Fitzhenry was the Scottish Information Commissioner during the COVID-19 pandemic and published two special reports on COVID-19 and freedom of information in Scotland.1 The first report, Impact of Covid-19 on Freedom of Information in Scotland, was published during December 2020.2 In this first report, the Scottish Information Commissioner set out its response to the pandemic and highlighted key actions taken to support and promote freedom of information during the COVID-19 emergency period.2 The report also summarised research into the impact of freedom of information changes on public authorities during the emergency period of the pandemic.2 The key issues, as reported by the Scottish Information Commissioner, that public authorities faced included:2
reallocation of resources
closure of premises
limited access to necessary systems
staff shortages
absence of key staff.
Public authorities reported that these issues caused responses to freedom of information requests to take longer but did not lead to an over-reliance on the use of the 60-day time limit or a suggestion that using extended time limits was becoming the norm.2 Where freedom of information delays (either from late responses or using the extended timescales) were caused by the pandemic, it was most often attributed to the reallocation of freedom of information resources within public authorities.2
The report also indicated that the pandemic did not create an influx of requests. Instead, public authorities experienced a decrease in freedom of information request numbers.2 The Scottish Information Commissioner indicated in the report that this may have been a result of a shift to more proactive publishing.2 The report states:
This highlights the importance of communicating clearly about change, and the role that a modernised proactive publication duty (which focuses on the public interest in information being proactively published and ensures its swift accessibility to the public) should have in the future.
Scottish Information Commissioner. (2020). The Impact of Covid-19 on FOI in Scotland. Retrieved from https://www.foi.scot/sites/default/files/2022-03/Impact_of_Covid19_on_Freedom_of_Information_in_Scotland_Special_Report.pdf [accessed 19 March 2025]
The report indicated that the return to the 20-day maximum timescale for a response caused further disruption to public authorities.2 This was particularly an issue for public authorities which redeployed staff or which had reduced access to premises and necessary systems during emergency periods.2
Daren Fitzhenry, the then Scottish Information Commissioner, gave an indication of the longer-term impacts of COVID-19 on freedom of information that he was interested in assessing as part of future engagement work with Scottish Ministers. Daren Fitzhenry stated in the first special report on COVID-19:
It remains to be seen what impact the good practice in proactive publication seen in April and May will have going forward. In particular, I will be examining what, if any, difference it will make to perceptions and lessons about how to present such information, and would like to see use of existing powers by the Scottish Ministers under section 60 of FOISA to enable modernisation of the statutory proactive publication duty. I have engaged with the Scottish Ministers on that point, through contact with their FOI Unit, and -will continue to do so. I will continue to monitor statistics over the coming quarters to inform next steps, and will report further on those findings.
Scottish Information Commissioner. (2020). The Impact of Covid-19 on FOI in Scotland. Retrieved from https://www.foi.scot/sites/default/files/2022-03/Impact_of_Covid19_on_Freedom_of_Information_in_Scotland_Special_Report.pdf [accessed 19 March 2025]
The second special report, Freedom of Information during and after the Covid-19 pandemic, was published during January 2022.14 It analyses the key impacts and reflects on lessons from the experience of freedom of information during the pandemic.14 After remarking on the resilience of freedom of information in Scotland during the pandemic, the Scottish Information Commissioner made several observations and recommendations for future freedom of information practice.14 The observation and recommendations stated in the report are:
Scottish Information Commissioner. (2022). Freedom of Information during and after the Covid-19 pandemic. Retrieved from https://www.foi.scot/sites/default/files/2022-03/FOI_During_and_After_the_Pandemic_Special_Report.pdf [accessed 19 March 2025]
FOI is a core function, and authorities should ensure it is afforded the resources and senior-level attention that it requires.
Authorities must consider the ways in which they create, store and manage records, particularly when using new technologies.
Authorities should take a positive, responsive approach to publishing information, learning from the experience of the pandemic.
Information should be provided in context to help people understand it and reduce the risk of misinterpretation.
Public authorities must have regard to their FOI obligations when implementing new systems or processes, including business continuity arrangements.
Steps should be taken to address disparities in access to information between equivalent public services based on how they are owned or managed (e.g., private care homes providing services to a local authority versus care homes run directly by a local authority).
The UK COVID-19 Inquiry and freedom of information practice
On 31 October 2023, the Deputy First Minister and Cabinet Secretary for Finance Shona Robison MSP made a statement to the Parliament on the Scottish Government's provision of information to the UK COVID-19 Inquiry.1 In the statement, Shona Robison MSP indicated that the UK COVID-19 Inquiry had requested the Scottish Government release messages exchanged by members of the Government and officials via non-corporate messaging tools, such as WhatsApp, during the emergency period of the pandemic.1 It was in relation to the request that actual messages be released, that the Scottish Government asked for the necessary legal basis for providing the information.1 In response to this, the UK COVID-19 Inquiry issued a formal section 21 order under the Inquiries Act 2005, which required the Scottish Government to produce the relevant documents.1 Shona Robison MSP conveyed in her statement that the Scottish Government received the order on 30 October 2023 and that it would comply with the request by 6 November 2023.1
The Scottish Information Commissioner, David Hamilton, subsequently made a statement on the status of non-corporate messaging tools under FOISA on 2 November 2023.i The statement read:
There is a significant amount of public discussion currently around the use of WhatsApp and other messaging tools by public authorities. In particular, the ongoing inquiries into the response to the Covid-19 pandemic have seen a specific focus on public authority use of tools such as WhatsApp during the management of the pandemic, and whether relevant information has been appropriately recorded, retained and, where relevant, searched when responding to requests under FOI law.
Where tools such as WhatsApp are used by public authority staff to carry out official business, the information generated will, in most cases, fall under the scope of Scotland’s FOI laws. The Freedom of Information (Scotland) Act 2002 defines “information” as “information recorded in any form”. The Commissioner therefore expects public authorities to identify and consider all appropriate recorded information when responding to FOI and EIR requests, including, where relevant, information recorded in exchanges made through WhatsApp, Microsoft Teams, or other messaging tools.
Scottish Information Commissioner. (2023, November 2). Statement on the status of 'non-corporate' messaging tools under FOI law. Retrieved from https://www.foi.scot/commissioners-statement-status-non-corporate-messaging-tools-under-foi-law [accessed 19 March 2025]
The UK Covid-19 Inquiry released evidence from Scottish Government WhatsApp messages on 22 January 2024. This evidence included extracts of WhatsApp messages between officials appointed by the Scottish Government.8 The evidence led to public concern that deletion of messages from these channels may have been occurring in a manner that is not compliant with FOISA and Scottish Government record retention policies.9
The Scottish Information Commissioner announced a performance intervention into the Scottish Government's communications and record keeping practice under FOISA on 4 February 2024.9 In a news release on the performance intervention, David Hamilton is quoted as stating:
The evidence disclosed during Module 2A of the UK Covid -19 Inquiry raises significant practice concerns which warrant further investigation by my office.
It is critical that public officials retain information which allows the public to understand how decisions are reached, for both record keeping requirements and to maintain public confidence. Understanding how decisions are reached is how public trust in decisions are secured and lessons learned for the future.
It is also evident that the use of informal communication channels present risks to transparency and accountability within government. My intervention will review current practices as well as identifying actions to be taken to ensure improvements are made in relation to how officials and Ministers use and retain informal communications in future.
Scottish Information Commissioner. (2024). Scottish Government Intervention - communications and records. Retrieved from https://www.foi.scot/scottish-government-intervention-communications-and-records [accessed 19 March 2025]
On 22 March 2024, the then First Minister Humza Yousaf MSP announced an external review led by Emma Martins (former Channel Islands Data Commissioner) to investigate the use of mobile messaging applications and non-corporate communication apps in the Scottish Government.12 The review was published on 17 December 2024, and coincided with the publication of a revised Ministerial Code which set out that Ministers should use Government communication systems for all Government business.ii
The Scottish Information Commissioner performance intervention, at the time of writing, is ongoing.9 David Hamilton, the Scottish Information Commissioner, following the Emma Martins review stated:
I welcome Emma Martins' report, and congratulate her on a wide-ranging review which puts behaviours and culture at its heart. Her review complements much of my own office's thinking and approach to our ongoing intervention.
I note, however, that the Scottish Government's plans to remove WhatsApp from corporate devices won't be enforceable on personal devices. I would remind everyone that any public authority information, wherever it is held, will be subject to Scotland's FOI laws.
Scottish Information Commissioner. (2024). Commissioner's statement following the independent review of the Scottish Government's use of mobile messaging tools. Retrieved from https://www.foi.scot/commissioners-statement-review-scottish-government-use-mobile-messaging-tools [accessed 24 April 2025]
The future of freedom of information in Scotland and potential for reform
The future of freedom of information in Scotland, along with potential reforms to FOISA, has been the subject of consultations by both the Scottish Parliament and Scottish Government since 2017. These consultations were prompted by a post-legislative scrutiny inquiry conducted by the Session 5 Public Audit and Post-legislative Scrutiny Committee between 2017 and 2020.1
Post-legislative scrutiny of the Freedom of Information (Scotland) Act
The Public Audit and Post-legislative Scrutiny (PAPLS) Committee undertook post-legislative scrutiny of FOISA during Session 5.1 This scrutiny began in 2017 when FOISA was shortlisted by the PAPLS Committee for post-legislative review and concluded on 19 May 2020 with the publication of a report.2 The report concluded that while FOISA had significantly improved the transparency and accountability of public authorities, it needed updates to address the evolving nature of public service delivery and communication methods.2 The PAPLS Committee made an overarching recommendation that the Scottish Government conduct a public consultation before bringing forward legislation. The Scottish Government responded positively to the Committee's report and agreed to a public consultation to gather wider views on potential legislative changes.4
The PAPLS Committee's specific recommendations were structured around several key themes: who is covered by the Act, what is covered by the Act, proactive publication, resourcing and fees, requests for information, and reviews and appeals.2 This section summarises the scrutiny and recommendations laid out in the report.
Who is covered
The PAPLS Committee noted that a key theme in evidence was who is covered by FOISA and how the legislation should be amended to accommodate the changing nature of public service delivery in Scotland.1 There was a “general view” that FOISA had failed to keep pace with the changing nature of public service delivery in Scotland, meaning that several types of organisation that deliver public services or receive significant public funds do not fall within its scope.1 As such, the Committee agreed that:
in principle, organisations that provide public services on behalf of the public sector should be covered by FOISA in a proportionate manner.
The Scottish Parliament Session 5 Public Audit and Post-legislative Scrutiny Committee. (2020, May 19). Post-legislative scrutiny: Freedom of Information (Scotland) Act 2002. Retrieved from https://digitalpublications.parliament.scot/Committees/Report/PAPLS/2020/5/19/Post-legislative-scrutiny--Freedom-of-Information--Scotland--Act-2002#Introduction [accessed 1 November 2024]
At the time of the PAPLS Committee’s inquiry, the Scottish Government was inviting views on extension of coverage to organisations that provide public services under section 5 of FOISA.4 The subsequent consultation analysis indicated that there was support for an extension of FOISA coverage with 47% of respondents in favour.4 Only 22% of respondents did not support an extension and 31% were either not sure or did not address the question.4 The consultation analysis states:
The Campaign for Freedom of Information in Scotland and UNISON Scotland, together with most of the individual respondents expressed consistent enthusiasm for an ambitious approach to extension. This was supported to a significant extent by the detailed response from the Scottish Information Commissioner who also advocated for substantial extension, albeit qualified by an emphasis on certain areas identified as particular priorities.
By contrast a number of stakeholders, predominantly representing the third sector and many with an interest in the delivery of health and social care services, expressed significant concerns about the impact of extending FOISA coverage in terms of administrative burden and the willingness of third or private sector organisations to enter into contracts with public authorities. These stakeholders tended either to oppose further extension of FOISA outright or to urge a more cautious approach.
Scottish Government. (2020, March 6). Freedom of information - extension of coverage: consultation analysis. Retrieved from https://www.gov.scot/publications/freedom-information-extension-coverage-consultation-analysis/ [accessed 11 November 2024]
The PAPLS Committee suggested several remedial options in consideration of the slow pace at which organisations have been designated as public authorities under section 5 of FOISA and concern that the legislation is not sufficiently agile for the public sector landscape.1 These included a “factors” approach to extending FOISA based on functional tests of the extent to which an organisation is delivering public services and a “gateway clause” which would bring bodies carrying out public functions and in receipt of public funds within the scope of FOISA.1 The PAPLS Committee state in its report:
The Committee recognises that any solution needs to be proportionate. It therefore supports, in principle, the idea of a “factors” approach to the extension of FOISA, which is based on functional tests, such as the extent to which an organisation is delivering a public function; the degree of public interest in relation to the function/service being delivered and the cost to the public purse in delivering the function or service.
The Committee is also attracted to the idea of the legislation being amended to introduce a “gateway clause” which brings bodies carrying out public functions or in receipt of significant public funds within the scope of FOISA in relation to those elements of the organisation concerned with the provision of those services or spending of such funds. As such, the Committee recommends that the Scottish Government consults on amending FOISA to introduce a mechanism by which relevant elements of non-public sector bodies would automatically fall within the scope of FOISA if they fulfilled certain criteria relating to the provision of public services or functions and/or receipt of significant public funds.
The Scottish Parliament Session 5 Public Audit and Post-legislative Scrutiny Committee. (2020, May 19). Post-legislative scrutiny: Freedom of Information (Scotland) Act 2002. Retrieved from https://digitalpublications.parliament.scot/Committees/Report/PAPLS/2020/5/19/Post-legislative-scrutiny--Freedom-of-Information--Scotland--Act-2002#Introduction [accessed 1 November 2024]
The Scottish Information Commissioner, in evidence to the PAPLS Committee, also highlighted a loophole in the current legislation which exempts jointly owned bodies (i.e., bodies owned by the Scottish Ministers and one or more public authorities) from FOISA .1
I would first like to clarify that a company which is jointly owned by two or more public authorities will currently fall within the scope of FOISA, unless one of those public authorities is the Scottish Ministers. This situation appears to have arisen inadvertently as a result of the drafting of section 6(1), whereby the current drafting makes a company subject to FOISA if it is wholly owned:
a) by the Scottish Ministers; or (my emphasis)
b) by any other Scottish public authority.
While section 6(1)(b) of FOISA refers to a singular ‘public authority’, this provision should be read in conjunction with the Interpretation Acts, which set out that, unless a contrary intention is indicated, words in the singular which are contained in legislation will include the plural (and vice versa).
Companies which are wholly-owned by one or more Scottish public authorities will, therefore, be covered by virtue of 6(1)(b), while companies which are wholly owned by the Scottish Ministers and one or more public authorities will fall out of scope. An amendment to 6(1) to clarify that the latter is also covered (along with relevant consequential amendments to section 6(2)) would address this oversight. At the same time, it may be prudent, for clarity, to make it clear that any reference to “any other Scottish public authority” in section 6 includes “one or more Scottish public authorities.
Scottish Information Commissioner. (2022). Freedom of Information (Reform) Scotland Bill Proposal: Consultation response from the Scottish Information Commissioner. Retrieved from https://www.foi.scot/sites/default/files/2023-03/Private%20Members%20Bill%20FOI%20Consultation%20Response.pdf [accessed 24 April 2025]
The PAPLS Committee subsequently recommended that this anomaly is addressed in future amendments to FOISA (alongside a list of other technical amendments relating to reviews and appeals supplied by the Scottish Information Commissioner in written evidence).1
What is covered
The PAPLS Committee reported that whilst there was an increase in the level of information routinely recorded by public authorities, evidence indicated concerns about the use of unofficial channels of communication (e.g., WhatsApp) and the extent to which such information generated on these channels is being recorded.1 The PAPLS Committee asserted in its report:
The freedom of information regime is underpinned by effective record keeping and management. The Committee emphasises the importance of documenting and recording relevant information. It is clear that there should be no deliberate attempt to evade FOISA by failing to do so. The Committee considers that much greater emphasis needs to be given by the public sector as a whole to adequately creating information trails, such as relevant drafts, memos, emails, correspondence and minutes of meetings, which show how key decisions have been reached and how public funds have been spent.
The Scottish Parliament Session 5 Public Audit and Post-legislative Scrutiny Committee. (2020, May 19). Post-legislative scrutiny: Freedom of Information (Scotland) Act 2002. Retrieved from https://digitalpublications.parliament.scot/Committees/Report/PAPLS/2020/5/19/Post-legislative-scrutiny--Freedom-of-Information--Scotland--Act-2002#Introduction [accessed 1 November 2024]
The PAPLS Committee also considered the possibility of amending in legislation what is meant by information and the extension of guidance that would set requirements for certain information to be recorded and accessible under FOISA.1 The Scottish Information Commissioner also proposed a technical amendment which would have the effect of excluding environmental information as defined by the EIRs from FOISA.4
Proactive publication and resourcing of freedom of information
The PAPLS Committee noted there was a consensus that the publication scheme model is outdated and does not reflect the way in which members of the public search for or access information.1 The SIC recommended that the requirement for public authorities to adopt a publication scheme should be removed and replaced with a statutory duty to publish information, supported by a new legally enforceable “Code of Practice on Publication” to ensure consistency.1 The PAPLS Committee recommended that the Scottish Government consult on this amendment to FOISA.1
The PAPLS Committee also advocated for a cultural shift in the way public authorities approach proactive publication and the resourcing of FOI functions.1 The PAPLS Committee specifically stated that:
[...] authorities need to think carefully about how the public wishes to access the information that they hold - whether by topic, sector or geographical area - and reflect this in the way in which they create, store and publish information. The Committee recognises that, in the short term, the development of a coherent system of proactive publication may require an initial increase in resources, but notes the significant benefits in the longer-term, including increasing public trust in public authorities, but also in reducing the number of requests.
The Scottish Parliament Session 5 Public Audit and Post-legislative Scrutiny Committee. (2020, May 19). Post-legislative scrutiny: Freedom of Information (Scotland) Act 2002. Retrieved from https://digitalpublications.parliament.scot/Committees/Report/PAPLS/2020/5/19/Post-legislative-scrutiny--Freedom-of-Information--Scotland--Act-2002#Introduction [accessed 1 November 2024]
Requests for information
Evidence submitted to the PAPLS inquiry highlighted the varying procedures for making freedom of information requests across public authorities.1 The PAPLS Committee acknowledged the frustrations experienced by some requesters due to this. However, the Committee also noted that establishing a specific format or template for requests could hinder the right to information.1 Instead, it recommended that the Scottish Government consult on amending FOISA to allow for the transfer of information requests between public authorities, similar to the provisions under the EIRs.1
Witnesses to the inquiry raised concerns about the current arrangement, where the deadline for public authorities to respond is reset to a new 20-day period if they seek clarification from information requesters.1 Alasdair Clark, an individual journalist responding to the Call for Views, suggested that officials sometimes delay asking for clarification until the end of the 20-day limit, causing unnecessary delays.5 The Scottish Information Commissioner expressed a preference for a “pause-the-clock” mechanism instead of one that "resets the clock", but noted that public authorities do not commonly use response delaying tactics such as asking for clarification at the end of the 20-day period.1 This approach was also supported by the then Minister for Parliamentary Business, George Adam MSP.1 The PAPLS Committee subsequently recommended that the Scottish Government consider a “pause-the-clock” mechanism in its consultation on legislative changes.1
The nature of information requests was another key area of consideration during the inquiry. The PAPLS Committee acknowledged and referenced a previous performance intervention by the Scottish Information Commissioner regarding how the Scottish Government handled requests from journalists and MSPs.1 Additionally, public authorities expressed concerns that requests made for commercial or research purposes might not align with the spirit of FOISA.1 However, the PAPLS Committee emphasised the principle of being applicant blind, meaning that all information requests should be treated equally, regardless of the requester’s identity.1 On a similar matter, albeit related to exemptions applied to information requested, the PAPLS Committee recommended that the Scottish Government consult on amending confidentiality exemptions in FOISA to address concerns about freedom of information requests on public sector contracts.1 The Scottish Information Commissioner also proposed a technical amendment which would have the effect of adding a requirement that exemptions are read in a restrictive way, to complement the default position that information should be disclosed under FOISA.13
Other concerns raised related to information requests deemed to be vexatious.1 Respondents and witnesses in evidence to the PAPLS Committee raised concerns about the meaning of "vexatious use" and how to objectively assess whether a request is vexatious.1 The PAPLS Committee therefore recommended that the use of the section 14 exemption should be revisited and suggested that concerns over vexatious use of FOISA could be dealt with through implementation of additional guidance from the Scottish Information Commissioner.1
Resourcing, reviews, and appeals
Evidence submitted to the PAPLS Committee's inquiry highlighted the resource burden of responding to FOI requests when faced with an increasing demand for information.1 Given the impact on resources, some submissions called for a review of the fees that could be charged for responding to requests through the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004.1 Both the Scottish Government and the Scottish Information Commissioner proposed estimating the staff time required to handle the request, rather than the cost of compliance.1 The PAPLS Committee recommended that the Scottish Government include this option in a broader consultation on other legislative changes.1
The Scottish Information Commissioner in its written submission to the PAPLS Committee suggested removing section 48 prohibitions against appeals being made against the Crown Office and Procurator Fiscal Service and the Scottish Information Commissioner.5 The Commissioner noted that only a small number of appeals have been excluded by section 48 and that there is no comparable provision in the UK Freedom of Information Act 2000.5 Similarly, the Scottish Information Commissioner recommended the section 52 power of veto given to the First Minister is removed from FOISA.5 The section 52 power applies to a decision or enforcement notice related to the Scottish Government's failure to provide information.8 The Scottish Information Commissioner indicated that this power does not serve the purposes or objectives of FOISA.5 The PAPLS Committee recommended that both revisions are consulted on by the Scottish Government.1
As mentioned previously, the Scottish Information Commissioner provided a list of technical amendments in its submission to the PAPLS Committee. Three of the amendments proposed by the Scottish Information Commissioner related to reviews and appeals. The relevant proposed amendments are set out below.5
Amend section 53(1)(a) of FOISA to make it clear that failure to comply with a decision in time can also be referred to the Court of Session.
Amend section 74 of FOISA to clarify that decision notices can be given by email.i
Introduce an exemption for information provided to the Scottish Information Commissioner under or for the purposes of FOISA.
The PAPLS Committee recommended that the Scottish Government include the proposed amendments in a consultation on legislative changes to FOISA.1
Responses to the Committee report
The Scottish Information Commissioner's initial response to the PAPLS Committee report was set out in the Scottish Information Commissioner Annual Report for 2021 to 2022. The annual report indicates that following the report, the Scottish Information Commissioner:1
conducted research on current practices and potential future approaches to proactive publication
started sharing insights from decisions, including those related to managing new forms of information and communication
initiated efforts to improve guidance provided to public authorities and the public on various aspects of freedom of information law and rights.
The PAPLS Committee Session 5 Legacy Paper summarised its consideration of FOISA and set out its recommendation for the Session 6 Parliament.2 The Legacy Paper states:
The Committee’s report on Freedom of Information laws demonstrated that there are clear weaknesses with the current legislative framework. The Committee is strongly of the view that a significant shift is required in public bodies to move to proactive publication, with a focus on making accessible the information that members of public want to see (without having to request it). Public services are now delivered through a wide variety of entities, some of which still remain outside the scope of FOI legislation. This needs to change. The Committee recommends that the next Parliament robustly pursues the Committee’s recommendations to ensure that the Scottish Government makes the necessary changes.
The Scottish Parliament Session 5 Public Audit and Post-legislative Scrutiny Committee. (2021, March 15). Session 5 Legacy Paper. Retrieved from https://digitalpublications.parliament.scot/Committees/Report/PAPLS/2021/3/15/4f0f838b-3e50-479a-8721-621037bca0a0 [accessed 11 November 2024]
Consultations on freedom of information reform
The Scottish Government committed to consulting on reforms to FOISA in response to the PAPLS Committee report.1 This consultation was launched in November 2022.2 Shortly before this, Katy Clark MSP proposed a Member's Bill to reform FOISA and initiated a separate consultation on the proposal.3 This section discusses the content and responses from both consultations.
The proposed Freedom of Information Reform Bill
In January 2022, the Campaign for Freedom of Information in Scotland published a draft Bill along with explanatory notes aimed at reforming FOISA.1 This draft Bill was later converted into a draft consultation for an MSP to adopt.1
Katy Clark MSP lodged the draft proposal for a Freedom of Information Reform (Scotland) Bill (a Member’s Bill) on 1 November 2022.3 A consultation on the proposal closed on 14 March 2023 and Katy Clark MSP has since secured the right to introduce the proposed Bill.3 The Campaign for Freedom of Information in Scotland is cited as assisting in the drafting of the proposed Bill.5 Katy Clark MSP states in the consultation document:
I am consulting on a draft proposal for a bill to improve existing freedom of information legislation including to:
The Scottish Parliament. (2022, November). Consultation on a proposed Freedom of Information Reform (Scotland) Bill by Katy Clark MSP, Member for West Scotland (Scottish Labour). Retrieved from https://www.parliament.scot/-/media/files/legislation/proposed-members-bills/freedom-of-information-reform-bill--consultation-by-katy-clark-msp.pdf [accessed 19 November 2024]
Deliver on the recommendations of the PAPLS Committee
Update the law and ensure compliance with human rights law
Strengthen the enforceable right of access to information
Extend FoISA to those bodies delivering public services, services of a public nature and publicly funded services
Introduce a new statutory role of Freedom of Information Officer (FIO)
Provide agility and clarity in defining duties however information is stored and transmitted such as using temporary WhatsApp message groups
Provide a legal duty for proactive publication
Improve enforcement.
Katy Clark MSP, in the consultation document, proposed a number of reforms to FOISA, which are set out in the following list.5
Introduction of a purpose statement to FOISA, similar to the statement in Article 1 of the Aarhus Convention, to clarify the intended outcomes of the legislation.
Amendments to section 1 of FOISA (also known as the General Entitlement) to pause the clock, rather than reset it, when a public authority requests clarification on an information request.
Review of the definition of information in FOISA to ensure it can accommodate new methods of public service delivery (e.g., extraction of information from algorithms)
Reforming the definition of public authorities to ensure it covers bodies (namely, jointly owned public bodies, private sector bodies, and third sector bodies) delivering public services, services of a public nature, and publicly funded services.
Amendments to sections 4 to 6 of FOISA to improve the pace at which bodies are designated as public authorities under FOISA (e.g., by ensuring publicly owned companies owned by public authorities and public bodies with mixed or no reserved functions are automatically covered).
Introduction of a statutory role for a Freedom of Information Officer in each public authority to ensure compliance with the legislation and elevate the profile of freedom of information within the organisation.
Establishing a legal duty for public authorities to proactively publish information.
Reforms to FOISA to support good records management and strengthen the impact of existing records management legislation.
Applying the public interest test to all exemptions in FOISA and considering a reduction in the number of exemptions.
Extending the scope of enforcement notices to include failures to comply with the Codes of Practice issued under FOISA.
Removal of section 48 of FOISA which excludes appeals to the Scottish Information Commissioner against the Procurator Fiscal or the Lord Advocate where there is a dispute about the extent to which the information requested concerns criminal prosecution and investigations of deaths in Scotland.
Removal of section 52 of FOISA which allows the First Minister to overrule a Scottish Information Commissioner decision against the Scottish Ministers where the First Minister considers the information in question to be of exceptional sensitivity.
Response to the consultation
The summary of consultation responses was published on 7 December 2023.1 Katy Clark MSP, in the commentary on the summary of consultation responses, states:
The consultation process has shed light on many important issues:
The Scottish Parliament. (2023, December 7). Freedom of Information Reform (Scotland) Bill: Summary of Consultation Responses. Retrieved from https://www.parliament.scot/-/media/files/legislation/proposed-members-bills/final-version--foi-consultation-summary.pdf [accessed 24 February 2025]
The need for legislative reform given the failure to address operational problems and legislative inadequacies
The extent of migration of publicly funded services from publicly owned bodies
The delay in designating bodies under FOISA
The administrative burden on the Office of the Scottish Information Commissioner created by designating many more bodies under FOISA at the one time
The need to extend FOISA in a manageable and proportionate way, with appropriate training, guidance and advice provided to each sector (and, importantly, service-users and the wider public) in advance of commencement date(s)
The need for a proactive duty to provide information and the significant imbalance between the public sector and others providing public services in relation to the provision of information
The need for legislation to be drafted in such a way to create general powers which address new circumstances
The need for legislative changes which are proportionate and reasonable given the support for them indicated in this consultation and previous consultations.
Scottish Government consultation on freedom of information
The Scottish Government consultation on "Access to information rights in Scotland" ran between 29 November 2022 and 14 March 2023.1 The consultation addressed several areas of FOISA, including:1
inclusion of public service contractors under FOISA
Scottish Ministers’ powers under section 5 of FOISA to extend access to information rights to other public bodies in Scotland
the PAPLS Committee recommendation for a "gateway clause" (i.e., a clause which would which brings bodies carrying out public functions or in receipt of significant public funds within the scope of FOISA)
developments in technology and the definition of information under FOISA
improving proactive publication of information by public bodies
general issues related to making sure FOISA remains fit for purpose (e.g., fees regulation, compliance times when there is a request for clarification, transferring requests between public bodies, and amendments to exemptions and prohibitions under FOISA).
Consultation analysis
The Scottish Government published its consultation analysis on 30 June 2023.1 The analysis notes that 83 written consultation responses from 70 organisations and 13 individuals were received.1 The consultation analysis also notes that half of the organisations responding were themselves public authorities under FOISA.1 The remaining organisations were from a variety of third sector, civil society and other organisations in Scotland.1
The Scottish Government summarised the responses to the consultation over four sections, covering the following areas.1
Agility of the FOISA regime in the context of varied models of service delivery.
Developments in information technology and the impact on access to information.
Improving proactive publication.
Technical updates to FOISA.
Response to the consultation
The Scottish Government published its response to the consultation on 28 November 2023.1 Its position on amending FOISA was stated in the response to the consultation:
The Scottish Government considers that post-legislative scrutiny of FOISA, and the subsequent Scottish Government consultation has been a useful exercise to examine the operation of access to information rights in Scotland – changes to FOISA having last been made by the Freedom of Information (Amendment) (Scotland) Act 2013. The Scottish Government recognises that there are areas where further amendments to primary legislation could be of some value, to make incremental improvements to the regime. We therefore do not rule out a further FOISA Amendment Bill in the future.
However, the Scottish Government believes that the fundamentals of the access to information rights regime, provided by FOISA and Environmental Information (Scotland) Regulations 2004 (EIRs), remain fit for purpose, so we do not propose to introduce new primary legislation to amend FOISA within the current session of the Scottish Parliament. Rather, the Scottish Government proposes to address issues which have been raised in the post-legislative scrutiny process within the framework provided by the existing primary legislation – including through the use of existing secondary legislation making powers.
Scottish Government. (2023, November 28). Access to information rights consultation: response. Retrieved from https://www.gov.scot/publications/access-information-rights-scotland-response-analysis-consultation-responses/pages/1/ [accessed 3 March 2025]
What's next for freedom of information reform?
Scottish Parliament
While the Scottish Government has decided to not legislate to reform FOISA, Katy Clark MSP has secured the right to introduce the Freedom of Information Reform (Scotland) Bill.1 In accordance with Rule 9.14.15 of the Standing Orders of the Scottish Parliament, the Bill must be introduced by 3 June 2025, or in exceptional cases, by 30 September 2025, to be considered by the Parliament during Session 6.2
Scottish Government
The Scottish Government published its freedom of information policy objectives for 2024 to 2026 on 22 June 2024.1 The approach is stated as non-legislative and consists of three workstreams.1
Workstream 1: Consideration of and use of Scottish Ministers' powers to extend coverage of FOISA
The Scottish Government has reiterated its commitment to undertake a public consultation on the extension of FOISA to care homes and care from home services. It is not clear when this consultation will take place given the delays and pauses to the National Care Service (Scotland) Bill, now Care Reform (Scotland) Bill. The policy objectives state that the consultation was to be launched in late 2024 or early 2025, but no such consultation has been published yet. The Scottish Government have, however, published a terms of reference and membership for a proposed advisory group for the consultation on extending FOISA to care homes.3 This terms of reference, published on 30 April 2025, states the aim of the proposed advisory group as:
To input into the development of the Scottish Government’s approach to consultation on extension of FOISA to private and third sector providers of care home and ‘care at home’ services, in order to ensure the approach to consultation is robust.
Scottish Government. (2025, April 30). Care sector - Consultation Advisory Group: terms of reference. Retrieved from https://www.gov.scot/publications/care-sector-consultation-advisory-group-terms-of-reference/ [accessed 12 May 2025]
The Scottish Government has also indicated that it plans to develop and set out an approach to the wider use of the section 5 extension power. Stakeholder engagement was expected to begin in late 2024, with an approach agreed by summer 2026, and an ongoing programme of further extension to be developed in late 2026.
Workstream 2: Updating statutory guidance for public authorities
The Scottish Government has indicated it will consult with the Scottish Information Commissioner and the Keeper of the Records of Scotland on revisions to the section 60 and 61 Codes of Practice. The Scottish Information Commissioner indicated this consultation was underway in its annual report for 2023-24 and at the Standards, Procedures and Public Appointments Committee meeting with the Commissioner on 30 January 2025.56
Workstream 3: Maintaining full freedom of information coverage of the public sector in Scotland
The Scottish Government has committed to undertaking a comprehensive review of Schedule 1 of FOISA (i.e., the list of public authorities subject to the Act), using the section 4 power to make any required updates to the Schedule. The policy objectives indicate this review will include consideration of the status of any publicly owned companies which are currently not subject to FOISA or the status of which is uncertain. The objectives indicate that the Scottish Government plans to conduct the review and stakeholder engagement in 2025, with a section 4 order laid before the Parliament in 2026.
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