Category: FOISA

Clarifying Costs: The Proper Approach under Section 12 of the Freedom of Information (Scotland) Act 2002

October 12th, 2025

Last week the Second Division of the Inner House of the Court of Session (Lord Justice Clerk and Lords Malcolm and Armstrong) refused an appeal under section 56 of the Freedom of Information (Scotland) Act 2002 (“FOISA”) against a decision of the Scottish Information Commissioner. The decision appealed against concerned the application of section 12 of FOISA by the Police Investigations and Review Commissioner (“PIRC”) in relation to the appellant’s request for information to PIRC.

The Appellant had made a request for information to PIRC seeking the information as to the number of police officers it had arrested since it came into being in 2013. PIRC issued a response to the Appellant advising that the cost of complying would be £108,390, well in excess of the £600 limit applicable in terms of FOISA and the Regulations. PIRC said that in order to comply with the request for information it would need to review 433,588 files as the information requested was not recorded as a matter of routine. Unhappy with this response, the Appellant eventually made an application to the Scottish Information Commissioner for a decision in terms of section 47(1) of FOISA. The Commissioner issued a decision notice upholding the decision of the PIRC; however, the Commissioner also found that PIRC had failed to provide advice and assistance in terms of section 15 of FOISA. The Appellant thereafter appealed to the Court of Session.

The Appellant argued that the Commissioner had failed to take into account the public interest in disclosure of the information in reaching decision that he did. The Court held, at [4], that this proposition was “misconceived.” The public interest test only arises “if a request is refused because of an exempt category of information” in Part 2 of FOISA. [4] Section 12 applies to all request and there was no reliance upon an exemption within Part 2 of FOISA in relation to the Appellant’s request. [4]

The Appellant sought a declarator from the court that PIRC owed a duty of care to keep the public informed as to police officer’s conduct. The court held, at [5], that it had no power to make such a declarator. The functions of PIRC are set out in section 62 of the Police and Fire Reform (Scotland) Act 2012. The court was concerned, in this case, with an appeal against a decision of the Scottish Information Commissioner and whether the Commissioner had erred in law (see [3] and [5]). In any event PIRC were not party to the proceedings (which is very much the norm in Scottish FOI appeals given that the Court of Session does not have the power to order disclosure of withheld information, merely to reduce the decision of the Commissioner and remit it back to him for a fresh determination if the Commissioner has erred in law); the court was unable to “embark upon a review of its performance in general, nor of its record-keeping and data retrieval systems.” [5]

The Appellant argued, in what the court considered as “an arguable error of law” [6], that the Commissioner had erred in law because he had based his decision on PIRC’s current systems for the storage of data. The Appellant considered that PIRC’s systems were “out of date, highly efficient and conducive to a lack of transparency and accountability.” [6] The Appellant argued that the cost estimate given by PIRC “could not be regarded as sensible, realistic and supported by cogent evidence.” The Appellant continued that the Commissioner ought to have had regard to modern automated systems potentially allowing for a less costly response to her system; the Commissioner should have sought expert advice on the subject as part of his investigation.

In refusing the appeal, the Court had regard to the decision of the Upper Tribunal in Kirkham v Information Commissioner [2024] UKUT 127 (AAC), which concerned the equivalent provisions within the Freedom of Information Act 2000 (“FOIA”). The Court, at [10]-[11], cited, with approval, paragraphs 17-20 of Kirkham. In essence, the cost estimate is based upon the way in which the authority actually holds the information at the time the request is made. The Court held that “the Commissioner would have erred had he concluded that the information should be disclosed because the cost of compliance could be reduced to an amount below the limit if PIRC upgraded its systems.” [11] It is not the Commissioner’s role to police the data management procedures of public authorities such as PIRC; his only role is to consider whether it has complied with its duties under FOISA and that is a question which depends upon the terms of the Act. [11]

The Appellant also challenged the Commissioner’s finding that PIRC had failed to comply with the requirements of section 15 of FOISA. The Court was not satisfied that these amounted to an error of law on the part of the Commissioner. [14] These were matters for the Commissioner as a specialist. [14]

The Appellant made other challenges which did not have any merit to them and are dealt with, briefly, at paragraph [12] of the court’s opinion.

As will be known to anyone familiar with FOISA and FOIA, an appeal against a decision of the Scottish Information Commissioner is only on a point of law; there is no full merits appeal from his decisions in the way there is of decisions of the Information Commissioner under FOIA. The Court of Session took the opportunity to affirm that as the Commissioner is a specialist statutory decision-maker, it will afford a degree of institutional respect in relation to decisions within his area of competence. [3] and [14]

The Opinion of the Court in this appeal confirms that the approach to section 12 of FOISA is the same the approach to section 12 of FOIA as explained in Kirkham. If a Scottish public authority has a records management system that is so inefficient and out-dated that it results in it being too costly to search, locate and retrieve information that falls within the ambit of a request for information then the requester simply has to take the authority’s records management system as it exists.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}
Transparency Recast: How the Freedom of Information Reform (Scotland) Bill could change FOI in Scotland

June 6th, 2025

On Monday 2 June 2025, Katy Clark MSP introduced her long-awaited Freedom of Information Reform (Scotland) Bill into the Scottish Parliament.

Katy Clark MSP, a Member of the Scottish Parliament for the West of Scotland, opened a consultation in November 2022 on a proposal to introduce a Members Bill to the Scottish Parliament to amend the Freedom of Information (Scotland) Act 2002 (FOISA). That consultation closed on 14 March 2023, extended from 2 February 2023 to coincide with the Scottish Government’s own consultation. A total of 96 responses were submitted to the consultation spanning the public, private and third sector as well as academics, professionals with relevant experience and members of the public. The analysis of the consultation response can be found on the Scottish Parliament’s website here. The consultations by Katy Clark MSP and the Scottish Government followed on from the post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 carried out by the Parliament’s Public Audit and Post-legislative Scrutiny Committee which was carried out between 2019 and 2020; this, in turn, followed on from a vote in the Scottish Parliament in June 2017. It has, in short, taken almost 8 years to get to this stage. FOISA was last amended by the Freedom of Information (Amendment) (Scotland) Act 2013.

The Bill contains a number of important proposals; however, it should be borne in mind that this is not a Government Bill. The SNP administration is a minority administration and so they would need at least one other party to vote with them to defeat the Bill (more if it was the only Alba Party and/or independent MSP who voted with them to defeat the Bill). The proposal to introduce the Bill was supported by MSPs from three of the opposition parties. No SNP MSP supported the proposal to introduce the Bill.

General entitlement

The Bill proposes inserting a new subsection (5A) into section 1 of FOISA which would, if adopted by the Scottish Parliament, require a public authority to apply a presumption in favour of disclosure when considering a qualified exemption (i.e. one that is subject to the public interest test). This would bring FOISA into line with the Environmental Information (Scotland) Regulations 2004, which governs the access to environmental information held by Scottish public authorities, which provides for such a presumption in Regulation 10(2)(b).

The Scottish Government has previously taken the view that such an amendment is not necessary because there is already a presumption in favour of disclosure inbuilt within FOISA. However, the Court of Session held otherwise (for full disclosure, I appeared for the unsuccessful appellant in that case, which can be seen on the face of the court’s opinion) and permission to appeal to the Supreme Court was refused. The decision of the Court of Session means that, contrary to the view of the Scottish Government, there is no such presumption (a view which they continued to express in December 2023 (para 83), after the Court of Session had resolved the question). If the Scottish Government is of the view that there ought to be such a presumption in FOISA, or that it was the intention of Parliament when it legislated in 2002 that there was to be such a presumption, then it is difficult to see how they could not support this proposal unless they are proposing their own amendments in their own Bill.

Designation of Scottish public authorities

There are a number of ways in which people or bodies not covered by the FOISA can be covered. The first is for the person or body to be added to Schedule 1 (as typically happens when new public bodies are created by statute), either in primary legislation or through section 4 of FOISA. The other is by way of an order under section 5 of FOISA.

The Bill would insert a new section 5A into FOISA which would establish another new way of designating Scottish public authorities: parliamentary resolution. This power would apply where the person is not listed in Schedule 1 nor be capable of being added under section 4 and is neither a public body nor holder of any public office. Furthermore, the person would need to either appear to be exercising functions of a public nature or be providing, under a contract made with a Scottish public authority, any service whose provision is a function of that Scottish public authority.

This provision is, as the policy memorandum confirms, is to enable the Scottish Parliament “to take the initiative on the pace and detail of designation” while ensuring that “designation is measured, understandable and enforceable.”

This appears to be a novel provision whereby Parliament could designate a person as a public authority without the need to pass an Act of the Scottish Parliament. There is a requirement for prior consultation by a committees or sub-committee before it makes such a resolution.

Publicly-owned companies

The Bill contains a provision to fix a lacuna in relation to publicly-owned companies. The Bill would mean that companies which are owned by the Scottish Ministers and any other schedule 1 authority (except where such an authority is listed only in relation to information of a specified description) would be a Scottish public authority.

Pro-active publication

The publication scheme model adopted by the Freedom of Information Act 2000 and FOISA has often been criticised as being out-dated and not going far enough when it comes to pro-active publication. This Bill, if passed into law, would amend FOISA by repealing the sections relative to publication schemes and instead create a duty upon Scottish public authorities to take reasonable steps to “(a) organise and keep up to date the information, relevant to its functions, which it holds, and (b) make that information available to the public in an accessible form and manner.” In doing Scottish public authorities would be required to have regard to a statutory code of practice issued by the Scottish Information Commissioner (and any revised version thereof).

Compliance with this new code would be policed by the Scottish Information Commissioner who would gain enforcement powers in relation to this new code of practice (along with the existing codes of practice issued under sections 60 and 61 of FOISA).

Freedom of Information Officers

The final proposal in the Bill that I wish to look at in this post (there are, of course, more proposals in the Bill) is the one to require Scottish public authorities to appoint a Freedom of Information Officer. This proposal is based on the role of the Data Protection Officer in the UK GDPR.

The policy memorandum states that the “objective is to embed a professional culture, underpinned by sufficient resource and authority, within organisations when it comes to handling requests and publishing information.” The policy memorandum also points to the requirement under section 1(2) of the Public Records (Scotland) Act 2011 as support for this proposal.

As stated at the outset of this post, the Bill has not been introduced by the Scottish Government (which previously ruled out primary legislation in its response to the consultation that it held on FOI reform) and so it is therefore not guaranteed to become law. Bills introduced by back-bench and opposition MSPs typically have a greater chance of success than their equivalent (Private Members Bills) do in the UK Parliament. Furthermore, the current Scottish Government is a minority administration which also increases its chances. However, MSPs from only three parties represented within the Scottish Parliament supported the proposal for the Bill.

The next elections to the Scottish Parliament are scheduled for May 2026 so it will be interesting to see whether this Bill makes it through Parliament during what is the final gasp of this session of the Scottish Parliament and what it looks like should it become an Act of the Scottish Parliament.

_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}
Court Fees, Access to Justice and Freedom of Information

November 23rd, 2016

On Monday new tables of fees enter into force for the Sheriff Courts and Court of Session in Scotland. The new table of fees is necessary because of the new Simple Procedure that is coming into force next week to replace the Small Claim procedure and to partially replace the Summary Cause procedure in the Sheriff Court. It would appear that the Scottish Government has used this opportunity to increase some other fees as well.

The other increases are part of the Scottish Government’s aim to get “full cost recovery” in the civil courts; that is, that so far as is possible those who litigate in Scotland’s civil courts fully fund the cost of running those civil courts. I have grave misgivings about such a policy for access to justice (and I am not alone in that view). This blog has, in recent times, moved more towards the field of Information Law and to that extent, I am going to look at these latest court fee rises in the context of Freedom of Information appeals.

In Scotland, under the Freedom of Information (Scotland) Act 2002, if a person is dissatisfied with how a public authority has handled a FOI request they can make an application to the Scottish Information Commissioner (SIC). The SIC has the power under the 2002 Act to make a decision as to whether the public authority has complied with the Act, and if not, she has the power to state what steps the public authority must take in order to comply with the act (including to order that the public authority release information to the requester). If a requester or public authority is unhappy with the Commissioner’s decision there lies a right of appeal (on a point of law) to the Court of Session.

The Scottish appeals procedure differs vastly from the appeals procedure under the UK Freedom of Information Act, where a right of appeal (on both fact and law) exists to a specialist First-Tier Tribunal and then on to the Upper Tribunal and the Courts (on a point of law only). There is currently no charge for lodging an appeal with the First-Tier Tribunal, nor for any step of process or a hearing. That is not the case in Scotland.

Unless the party bringing the appeal is in receipt of Civil Legal Aid, there are court fees to be paid. The appeals are also dealt with under Chapter 41 of the Rules of the Court of Session and go straight to the Inner House. For those who are unfamiliar with the Scottish court structure, the Court of Session is split into two “houses”. The Outer House hears cases at first instance and is usually presided over by a single Senator of the College of Justice; while the Inner House is the appellate court and hears appeals from the Outer House as well as other courts, tribunals and regulators (such as the Sheriff Appeal Court and the Scottish Information Commissioner). Appeals from the Inner House are (with permission) to the UK Supreme Court; the Inner House is therefore Scotland’s supreme Civil Appellate court. In the Inner House, at least three of Scotland’s most senior judges will sit to hear the appeal.

On 28 November, the Court Fees (Miscellaneous Amendment) (Scotland) Order 2016 shall enter into force. Schedule 1 to that Order sets out a new table of fees in the Court of Session. Paragraph 1 in Section B of the Table sets a new fee for lodging an “Appeal, application for leave or permission to appeal, summons, or other writ or step by which any cause or proceeding, other than a family action, is originated in either the Inner or Outer House (to include signeting in normal office hours)”. The new fee is set at £300, up from £214. So, in order to lodge your appeal against a decision of the SIC the Appellant (whether an individual or public authority) needs to stump up £300. The Respondent (who is the SIC) will also have to pay £300 (again, up from £214) to lodge their Answers to the Appeal.

There may be other fees to pay along the way, depending on the procedure that ends up taking place; however, when it gets to the hearing of the appeal, the costs start to mount up significantly. Each party (appellant and respondent) will be required to pay £500 (up from £239) per 30 minutes (or part thereof). Therefore, a hearing that lasts a full court day (roughly 5-6 hours) will result in a court fee of between £5,000 and £6,000; and that is before solicitors’ fees and the fees of Counsel are added. This is an astronomical figure. It is not paid by anyone in receipt of legal aid (and legal aid is available for FOI matters in Scotland), but you do not have to be very well off not to qualify for legal aid.

This represents a significant barrier to accessing justice. These are sums of money that most middle earners will struggle to get their hands on, even if they attempt the appeal as a party litigant (which given the complexity and sometimes archaic nature of the Court of Session Rules is no easy task). When it comes to the question of FOI, it only strengthens my belief that appeals against decisions of the SIC should be to a lower court or tribunal in the first instance.

There is a much more fundamental point however; the civil courts should be accessible to everyone. The level that court fees are rising to (and they are going to continue to rise over the next few years as the Government moves towards “full cost recovery”) presents a very real barrier to justice. The Scottish Government accepted that fees represent a barrier to justice in respect of the Employment Tribunal fees set by the UK Government (and has pledged to abolish them when the power to do so comes to the Scottish Parliament in the near future). However, the Government seems happy to continue with a policy of full cost recovery (that was, admittedly, started under the Labour/Liberal Democrat Administration that left office in May 2007). It is a flawed policy that will place a very real barrier to the courts for very many people. That, is a tragedy for justice and for democracy.
Gilroy -v- Scottish Information Commissioner

March 16th, 2016

The Court of Session has issued a rare judgment in respect of an appeal under the Freedom of Information (Scotland) Act 2002 (FOISA). Yesterday the First Division published its judgment in the case of David Gilroy –v– The Scottish Information Commissioner and the Chief Constable of Police Scotland.

The Appellant, David Gilroy, had been convicted of the Murder of Suzanne Pilley at the High Court of Justiciary. Mr Gilroy sought information from the Police Service of Scotland, as the statutory successor to Lothian and Borders Police (who had conducted the investigation to the murder of which Mr Gilroy has been convicted). The information he sought related to CCTV that had been seized by the Police as part of the murder investigation. The Police initially responded by saying that the information sought had been released to Mr Gilroy’s defence team and so he could obtain it that way, but had not complied with the technical requirements imposed in FOISA for a refusal notice. Mr Gilroy required that the Police conducted a review into their handling of the request. In response to the requirement for review, the Police refused the request on the grounds that it was exempt under section 38(1)(a) of FOISA – which provides that information to which the applicant is the data subject of is exempt. This is an absolute exemption and therefore it is not subject to the public interest contained in section 2 of the FOISA. Such information can be sought by way of a ‘subject access request’ pursuant to section 7 of the Data Protection Act 1998. The Police also cited the exemption at section 34(1)(c) of FOISA.

Mr Gilroy made an application to the Scottish Information Commissioner pursuant to section 47(1) of FOISA. The Commissioner issued a Decision in respect of that application (Decision 005/2015) finding that the Police were correct to withhold the information under section 38(1)(a). Section 56 of the FOISA provides a right of appeal to the Court of Session against a decision of the Scottish Information Commissioner on a point of law. Mr Gilroy appealed the decision of the Scottish Information Commissioner to the Court of Session.

The Court of Session’s decision is a short one. The relationship between the Data Protection Act 1998 and FOISA has been the subject of previous litigation and nothing new was brought out in this case. The litigation that has previously occurred in this field has confirmed that the question of whether information is personal data is a factual one. The Lord President (Carloway), in giving the decision of the Court, considered that there was “no identifiable error of law” in the Commissioner’s decision (para [14]) and that there was no “point of law to be considered” (Para [15]). The Lord President’s judgment states that Mr Gilroy’s appeal was “essentially an application to this court to review an assessment of fact made by the first respondent”. Mr Gilroy’s appeal was therefore refused by the Court.

The judgment does highlight (once again) the wide scope of the definition of personal data in the Data Protection Act. The Information in question was not stills or footage from the CCTV, but rather a list of images together with details such as location, dates and times. This was considered by the Court to clearly be within the definition of personal data and that the Appellant was the data subject (para [14]).

The Commissioner did not consider in her decision the question of the application of section 34(1)(c) to the information because it was, in her view, exempt under section 38(1)(a). The Court of Session therefore did not consider it either.

The Court’s judgment can be read on the Scottish Courts and Tribunals website here.
A problem with the Scottish EIRs

June 21st, 2015

The Environmental Information (Scotland) Regulations 2004 (“Scottish EIRs”) give individuals the right to request and obtain, subject to certain well defined exceptions, information in relation to the environment from Scottish public authorities. They implement into the law of Scotland Directive 2003/4/EC of the European Parliament and of the Council on public access to environmental information (“the Directive”). The Directive in turn implements the Convention on Access to Information, public participation in decision-making and access to justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”) into EU law.

In Scotland, like the rest of the UK, the Scottish EIRs are an adjunct to Freedom of Information. The Scottish EIRs sit alongside the Freedom of Information (Scotland) Act 2002 (“FOISA”) and the Scottish Information Commissioner has the same powers of enforcement in respect of the Scottish EIRs as she does in respect of FOISA. By virtue of Regulation 17 of the Scottish EIRs, Part 4 of FOISA applies to the Scottish EIRs. The Regulations make certain amendments to Part 4 of FOISA for when it is being read in respect of the Scottish EIRs.

Section 48 of FOISA provides that no application can be made to the Scottish Information Commissioner in respect of three scottish public authorities: (1) the Commissioner herself; (2) a Procurator Fiscal; and (3) the Lord Advocate, where the information relates to his role as head of the systems of prosecution and the investigation of deaths in Scotland. Essentially, this means that the Scottish Information Commissioner is prohibited from accepting any application for a decision by anyone that relates to the handling of a request for information under FOISA and the Scottish EIRs made to the Commissioner’s Office and the Crown Office and Procurator Fiscal Service (“the COPFS”). I’m not a fan of this section and think it ought to be repealed in its entirety, but that is a subject for another time. As far as the Scottish EIRs are concerned this section is a problem. Essentially, once the Commissioner’s Office and the COPFS have conducted an internal review there is nowhere else for the requester to go if they remain dissatisfied with the response.

Article 6(2) of the Directive provides that:

In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

The review procedure under paragraph 1 is essentially the internal review procedure provided for by Regulation 16 of the Scottish EIRs. In respect of every other scottish public authority covered by the Scottish EIRs there exists a right to make an application to the Scottish Information Commissioner and have a decision notice issued by her office together with the ability to appeal (on a point of law only) that decision notice to the Inner House of the Court of Session, and then on to the Supreme Court of the United Kingdom. There is a decision of a third party that is capable of becoming final. Therefore, Article 6(2) of the Directive is complied with. However, these appeal rights do not apply in respect of requests made to the Commissioner’s Office and the COPFS.

It should be theoretically possible to judicially review the internal review response of both the Commissioner and the COPFS. At a first glance that might be thought to satisfy the requirements of Article 6(2) of the Directive; however, the wording of the Directive suggests that Judicial Review may not be sufficient. Judicial Review is not an appellate procedure; it is a review procedure. The Court of Session cannot substitute its own decision for that taken by the public authority. The Court of Session could, in a judicial review, determine that irrelevant factors had been taking into consideration in respect of assessing the public interest where a qualified exception has been applied; it could not determine that the public interest does or does not support the maintaining of an exception. Essentially, all the Court can do is uphold the decision of the Commissioner’s Office or the COPFS, or it can quash the decision – it cannot re-take the decision (something that the Commissioner effectively has the power to do when considering an application under section 47(1) of FOISA). Therefore, judicial review cannot be a “review procedure… in which the acts or omissions of the public authority concerned can be reviewed” because it can only do so to a limited extent. Therefore, for all practical purposes the decision of the public authority is final, not the decision of a court or another independent and impartial body established by law.

Furthermore, judicial review is expensive and comes with considerable risk in relation to expenses. While it is theoretically possible for an applicant to represent themselves in the Court of Session, in all likelihood it will necessitate the instruction of a solicitor and at least junior counsel (if not junior and senior counsel); that is expensive. Even if an applicant manages to represent themselves in the Court of Session; the court fees will be prohibitively expensive to many people. These fees, payable at various stages throughout the process, will total hundreds of pounds. The public authority in question will be represented by Counsel and if a requester loses, they may find themselves responsible for paying the public authority’s expenses (although, the Court does retain an inherent discretion in whether to make an award of expenses and to what extent the losing party shall pay the winner’s expenses). This is relevant because the Aarhus Convention, upon which both the Directive and the Scottish EIRs are based, requires the review processes to be free of charge or inexpensive or not prohibitively expensive (Article 9). The Court of Justice of the European Union found that the UK had failed to properly implement the Directive when looking at the costs under the English judicial system (see European Commission v United Kingdom).

The problem for the Scottish EIRs gets bigger once consideration is given to the Scotland Act 1998. Section 57(2) of the Scotland Act provides that the Scottish Ministers have “no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with EU law.” The Scottish EIRs are regulations and are therefore subordinate legislation. By applying section 48 of FOISA to the Scottish EIRs the Scottish Ministers have made subordinate legislation that is ultra vires – it is outside of their competence. For the Scottish EIRs to be compatible with EU law, section 48 of FOISA cannot apply to them; while it does, the Scottish EIRs do not fully implement Article 6 of the Directive.

This problem is easily resolved. The Scottish Ministers simply need to amend the Scottish EIRs so as to disapply section 48 of FOISA in respect of the Scottish EIRs. This would enable the Commissioner to consider applications made to her under section 47(1) of FOISA concerning requests for information made to either her office, or the COPFS that engage the Scottish EIRs. Of course, the Scottish Ministers could introduce legislation into the Scottish Parliament to repeal section 48 of FOISA altogether (and that would kill two birds with one stone).

If the Scottish Ministers do not choose to make the relevant amendments they could be forced to. All it would take is for someone to go through the process of making a request for environmental information to either the Commissioner or the COPFS, getting a refusal notice which is then upheld at internal review, and making an application to the Scottish Information Commissioner so as to get a notice from the Commissioner stating that no decision falls to be made. This can then be appealed to the Court of Session for them to make what appears to be an inevitable decision: the Scottish Ministers acted ultra vires when applying section 48 of FOISA to the Scottish EIRs – an expensive process, but one that someone will eventually go down some day.
The Black Spider Letters – Part IV

March 29th, 2015

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General. The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons. It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it. While this might seem, on the face of it, really good for transparency; it comes with a serious warning. In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case. The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK. While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy. It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed. For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed. I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament. It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct. The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court. It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein. Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it. Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland? The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts. Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts). As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration. The wording in section 52 is almost identical to that in section 53. The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate. So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament. The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers. Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998. There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression). If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence. It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs. However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law. The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law. I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs. In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed. The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation. The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption. However, that does not affect the position under the EIRs. The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld. What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one. It had been proposed by the Scottish Government, but was dropped. Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.
Police Service of Scotland and Information Management

February 18th, 2015

Friday 13th is a much disliked date on the calendar and is often said to be unlucky amongst the superstitious. It would seem that Friday 13th February isn’t turning out to have been a great day for Sir Stephen House, the Chief Constable of Scotland’s national police force. On 13th February the body that is responsible for holding the Chief Constable to account, the Scottish Police Authority, convened a Special Board meeting to discuss the growing disquiet amongst many groups over the use of stop and search tactics by the Police Service of Scotland (PSoS). The SPA questioned the Chief Constable and one of his two deputies, Deputy Chief Constable Rose Fitzpatrick on the issue. Information released by the Scottish Information Commissioner today adds another blow to the Chief Constable in what could be described as a very long round in an extremely long boxing match.

The PSoS has faced a great deal of criticism over its use of stop and search, particularly non-statutory (or “consensual”) searches and especially non-statutory searches on minors under the age of 12. Last year an undertaking was given to the Scottish Parliament’s Justice committee that the PSoS would effectively ban its officers from undertaking non-statutory searches on minors under the age of 12. Earlier this month the BBC published a huge volume of data that suggested that this had been ignored on a large scale.

It has transpired that the information was obtained by the BBC under the Freedom of Information (Scotland) Act 2002 (FOISA). We have learned that this came following an initial refusal by the PSoS to release the data allegedly over concerns as to its accuracy. When the Chief Constable appeared before the Scottish Police Authority he stated that he had been forced by the Scottish Information Commissioner to release the information. That, as it turns out, wasn’t quite the case. The PSoS released the information following external legal advice. From what is available it suggests that the legal advice obtained by the PSoS advised that not releasing the data risked an adverse decision notice and as a consequence of that, the PSoS released the information to the BBC journalist who had requested it.

FOISA gives a right to individuals to access information held by public authorities in a recorded format. There is no right in FOISA to be given accurate information, nor is there an exemption in FOISA to enable public bodies to withhold information that is, or is believed to be, inaccurate. This is not a new thing; it has been the position for some 10 years now. If a public authority holds information in a recordable format and none of the exemptions in FOISA apply, then a person who asks for that information is entitled to be given it.

If the information is inaccurate that is the public authority’s problem, not the requesters. If a public authority cannot have in place measures to ensure that the information it is recording is accurate, then that says a lot about the authority. This whole fiasco has raised some serious questions about information management within the PSoS. It would seem that police officers have been routinely entering incorrect information into the PSoS systems that record stop and searches. That is something that must be rectified, and not just from an FOI perspective. If the information that the PSoS holds is not accurate that will result in a significant knock-on effect across the whole organisation. It means that everyone, from the Chief Constable down, is working from dodgy information. Such a situation means that decision-making across the organisation is weakened.

What is even more astounding was the Chief Constable’s admission to the Police Authority that he could not give a 100% assurance over other data held by the PSoS. That is quite an admission to be made by the Chief Constable to the body that holds him to account. It casts doubt on the accuracy of all data held by the PSoS; including recorded crime.

FOI here has proved itself rather useful. We may not be wiser about the extent to which the PSoS is using stop and search in Scotland, but what it has revealed is failings in the ability of the PSoS to accurately record what it is doing. It has opened up to scrutiny the information management practices of the PSoS and in the furore over stop and search sight should not be lost of what is a significant admission by the Chief Constable of the PSoS. A debate over the use of stop and search in Scotland still has to be had, but sorting out the apparent mess of the systems used by the PSoS to record data has to feature highly on the list of priorities for the Scottish Police Authority and HMICS. We cannot have a situation where there is a lack of confidence in the data held by the PSoS.
The cost and burden of FOI…again

February 8th, 2015

The Chief Constable of Surrey Police has gone on the offensive against Freedom of Information on Twitter this evening (and the Assistant Chief Constable of Greater Manchester Police joined in). It follows a predictable pattern where a public authority (and technically the Chief Constable is the public authority – schedule 1 to the FOIA provides that “A chief officer of police of a police force in England or Wales” is a public authority) complains about the cost of FOI and how it impacts upon the delivery of front line services.

It is a well trodden path which has, over the years, generated lots of discussion in information rights circles. One of the frequent things to be picked up in these discussions is that, while public authorities are complaining about the cost and burden of FOI, they rarely mention any of the benefits. Those benefits are around openness, transparency and accountability.

FOI, I can imagine, is probably a right pain in the backside to public authorities sometimes; however, just because it’s a royal pain in the backside doesn’t mean that it is of no value. FOI is about allowing the citizen to set the agenda on the flow of information. No longer is the flow of information dictated by what public authorities are prepared to release. Now, if a member of the public wants to know something, they have the right to be given it if the public authority holds it and there is no good reason for not releasing it.

In times of shrinking budgets, FOI might be seen as an expensive luxury. However, I would argue that in times of shrinking budgets FOI is all the more important. As budgets shrink, public authorities have to take decisions about how they spend their ever shrinking budget. That will often mean cuts to some services (or perhaps withdrawing services altogether). It allows people who are directly affected by those decisions to go to the public authority and obtain the information that forms the basis of those decisions. It can help them to understand why decisions have been taken and more importantly can better enable them to challenge decisions where they are perceived to be the wrong ones.

When Parliament drafted the FOIA, it didn’t do so without having any consideration as to the burden that this new regime would have on public authorities. There are a number of provisions within the FOIA which help to control the burden of FOI.

First, there is section 12 of the Act which sets an appropriate limit on the costs of FOI requests. A public authority is not obliged to comply with a request where the cost of compliance is estimated to excced the appropriate limit. For a police force in England and Wales, the limit is £450 (indeed, it is £450 for all public authorities except Government departments or Scottish Public Authorities, where it is £600). This does only covers certain activities and it is possible for requests to cost more than the appropriate limit in practice and not be capable of being refused under section 12. This will be because the cost is incurred in an activity which cannot be taken into account in any cost calculations for the purposes of determining whether it exceeds the appropriate limit.

Sometimes, these requests will be the ones where the public interest is finely balanced and the authority is having difficulty establishing just where the public interest lies. Should such requests be refused because of this? I’d forcefully argue that they should not. If it was possible to refuse these requests it would actively work against the public interest: the public might not get information which it would be in the public interest for them to have simply because it is going to take a bit of time for the public authority to work out just where the public interest lies. However, sometimes the additional cost will be because there is a large volume of information to consider. While, a request that throws up a large volume of information will often end up breaching the “appropriate limit”, it is sometimes the case that there is a large volume of information held on a particular subject which is actually relatively quick and easy to locate and extract. What takes the time then is the applying of exemptions and the conduct of the public interest test. Section 12 isn’t an option in these requests, because the law doesn’t allow for it to apply. However, this does bring us on to the next provision of the FOIA which is there to prevent the burden from being too great.

Before I look at that, I thought it would worthwhile pointing out that in terms of section 12 the law has provision within it to ensure that it cannot be avoided. Simply breaking down a large request into a number of different requests will still likely engage the cost limit: public authorities can aggregate requests from the same individual received within a period of 60 consecutive working days which seek similar information. So, asking for information on a particular subject over a 10 year period broken down into 5 requests each covering a 2 year period will be aggregated together. All of the requests will be refused if the cost of complying with all of them is estimated to exceed the appropriate limit. This provision goes further than that though; it’s not possible to get four of your mates to help you make 5 requests for the information over a 2 year period either. The law provides that where “different persons who appear to the public authority to be acting in concert or in pursuance of a campaign” the public authority can again aggregate the cost and refuse all of the requests if they exceed the appropriate limit.

The second provision designed to help public bodies with the burden of FOI requests is section 14, which deals with both repeated and vexatious requests. In terms of repeated requests, if a public authority has complied with a request from someone, they do not have to comply with a request from the same person which is for the same (or substantially similar) information unless a reasonable time has elapsed between the requests.

Vexatious requests are a bit more difficult; however, public authorities have been greatly helped by the decision of the Upper Tribunal in Dransfield (although, Mr Dransfield has appealed this decision to the Court of Appeal). It is important to note that it is the request, not the person making it, which is vexatious. However, previous correspondence between the requester and the public authority can be relevant. This provision largely allows public authorities to ignore people trying to use FOI to keep open grievances that have been rumbling on for a long time, especially where they have been the subject of complaints and independent scrutiny. Section 14 also catches those who are making requests simply to annoy the public authority (quite possibly because of a previous complaint). However, it can also be used to deal with requests where there is an unacceptable burden to the authority; described as “grossly oppressive”.

This is a higher burden than would be applicable in section 12, but it is an option that is open to authorities where requests produce large volumes of information with a lot of potentially exempt information – especially where those exemptions are qualified ones where the PI might be difficult to determine. However, the ICO does consider it good practice to go back to the requester before claiming section 14 in these situations – and doing so would probably fall within a public authority’s duty to provide advice and assistance. So, where a request is overly burdensome and section 14 could be claimed instead of section 12, a public authority should probably go back to the requester and try and work with the requester to refine their request. Although requesters are not required to (and public authorities are generally discouraged from asking), trying to establish the motive and purpose of the request can help. Engaging with the requester might save a public authority a lot of time in the long run as it becomes clear that only a tiny proportion of the information that has been uncovered is what the requester is after – the public authority gets to consider a much more refined request and avoids the possibility of an Internal Review and ICO complaint over its application of section 14 (and possibly an adverse finding against it, either in respect of its use of section 14 or its failure to provide advice and assistance).

I note that Surrey Police operates a disclosure log on its website, but that it states it only publishes responses which might have wider interest. Disclosure logs can be a useful tool for public authorities. There is an exemption for information which is already reasonably accessible to the requester. Publishing all responses in a disclosure log on a website might enable public authorities to refuse requests under section 21 of the Act. This is a quick and simple process that shouldn’t take a huge amount of time. Most of the time will be spent ensuring that the request isn’t seeking additional information which is not already reasonably accessible to the requester.

This is where the WhatDoTheyKnow website comes into its own – all information released to requesters on that website ends up in the public domain automatically. Just because it’s not actually published on the authorities own website, doesn’t mean it’s not reasonably accessible to the requester and so section 21 can still be used. One public authority has even worked with WhatDoTheyKnow to utilise the technology behind WhatDoTheyKnow on their own FOI website, undoubtedly reducing the burden of operating a comprehensive disclosure log.

If public authorities notice trends in their requests, it might be worthwhile proactively releasing the information on a regular basis. Then the exemption at section 22 is available to the public authority because it is information which is intended for future publication. This exemption is subject to the Public Interest Test, but there will normally need to be compelling reasons for departing from a set date for publication. Of course, public authorities would need to consider the cost balance here: is it more costly to routinely publish the information than deal with the FOI requests as they come in? The UK provision on information intended for future publication is much more generous that the Scottish provision, where it only applies in cases where the intended publication is no later than 12 weeks following receipt of the request.

We often see complaints from public authorities about requests which are bizarre in nature, but as Jon Baines has demonstrated, those apparently bizarre requests do sometimes have a justification behind them. For the ones that don’t, Tim Turner explains that they can be quickly disposed of.

There are, of course, steps that requesters can take to relieve the burden to public authorities and to that extent I commend Paul Gibbons’ guide to making FOI requests, which includes 10 very good tips for requesters.

A fairly long blog post, so if you have reached this point: thank you and well done!

——
Useful Links:

ICO guidance on section 12
ICO guidance on section 14
ICO guidance on section 21
ICO guidance on section 22
FOI at 10

January 1st, 2015

On 1st January 2005 the Freedom of Information Act 2000, the Environmental Information Regulations 2004, the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004 all entered into force. For the first time in the UK people had a right, backed by Statute, to ask for information held by public bodies and to be given that information unless it fell within the ambit of one of the exemptions in the Acts or Exceptions in the Regulations. Those rights were backed-up by independent regulators who had the power to order public bodies to release information where it had been incorrectly withheld by public bodies.

Today, is of course, the 10th anniversary of the coming into force of those rights and it has become so ingrained into our lives that we probably don’t notice it. Every year thousands of stories that we see on TV or in the newspapers or hear about on radio have been the result of information obtained under Freedom of Information; much of that information may well have remained hidden had it not been for the rights enshrined in law to obtain that information.

Freedom of Information has been used to uncover scandals around Parliamentary expenses, both in Westminster and in Holyrood. The late David McLetchie resigned as leader of the Scottish Conservative party following revelations that he had used taxpayers money to pay for taxis used in connection with party, rather than constituency, business. That information was obtained under Freedom of Information. At Westminster some politicians have served prison sentences as details of their expenses claims were revealed with help from FOI (and a leak to the Telegraph).

Over the last 10 years, Freedom of Information has become a powerful tool for local and national campaign groups to obtain information from the State as to how and why decisions have been taken. It has enabled public bodies to be held accountable much more easily and for the public to better understand decisions that have been taken by public bodies.

Of course, FOI has not come without its problems and difficulties. It does add an additional burden to public bodies – but the legislation does have limits to ensure that the burden doesn’t become too big or disproportionate. There are individuals who abuse their rights under FOI. There are a group of individuals who make use of FOI to try and keep open grievances that they have had with the public authority – some of which have been running for many years and been subjected to every form of scrutiny possible. There are also those who make requests about plans for dealing with a Zombie Apocalypse or how many red pens had been bought.

There have also been regular attempts to undermine Freedom of Information by representative bodies. These attempts have often cited ‘bizarre’ FOI requests. Many of these so called ‘bizarre’ requests have a perfectly legitimate basis as explored here by Jon Baines. The Prime Minister, David Cameron, also has some pretty strange ideas as to what Freedom of Information is.

FOI was a hard won right, with organisations such as the Campaign for Freedom of Information spending decades campaigning for access to information rights. As a consequence we have some of the best access to information rights in the world. Our rights are wide-ranging and simple to use whereas in other countries they are restrictive and contain a multitude of technical requirements making them difficult to use while others put the rights out of the reach of ordinary people by requiring fees to be paid in order to exercise those rights. However, while it is probably true to say that our FOI laws are some of the best in the world it is also true to say that they are in need of serious protection. As the way in which public services are delivered has changed, a lot of information has fallen out of the scope of FOI. The regular attacks from bodies representing public authorities also threaten FOI. These are important rights and it is right that on the 10th anniversary of FOI we remember their importance and how easy it would be for a Government to reduce, restrict or remove those rights. As a rule, politicians don’t like FOI – it can be embarrassing for them and leads to a much more informed electorate. A better informed electorate is a good thing, as is removing the Government’s total control over the flow of information.

The House of Commons Select Committee concluded that FOI ‘has been a significant enhancement to our democracy’ in a report following its post-legislative scrutiny of the Freedom of Information Act 2000. FOI has changed our democracy for the better, the 10th anniversary is a good opportunity to remind ourselves of how significantly things have changed in the last 10 years as a result of FOI and how valuable it has become.

The Campaign for Freedom of Information fought hard to get FOI onto the statute books and continues to work hard to promote it, campaign for its strengthening and protection; perhaps you would consider donating, even a small amount, to help them with this important work.
The new Scottish Public Authorities: Who are they?

March 26th, 2014

On 1 April 2014 the Freedom of Information (Scotland) Act (Designation of Persons as Scottish Public Authorities) Order 2013 (‘2013 Order’) enters into force and it is the first such Order made by the Scottish Ministers under section 5 of the Freedom of Information (Scotland) Act 2002 (‘FOISA’) since FOISA entered into force.

The 2013 Order will make new bodies subject to the provisions of FOISA, and by extension* to the Environmental Information (Scotland) Regulations 2004 (‘Scottish EIRs’). The 2013 Order does not list specific bodies which will become subject to FOISA and the Scottish EIRs, rather it describes the bodies that are to be made subject to FOISA and the Scottish EIRs. The Schedule to the 2013 Order has two columns, and the bodies which fall within the description in Column 1 will becomes subject to FOISA and the Scottish EIRs for their functions described in Column 2.

Column 1
By virtue of Column 1 a body which has been established or created solely by one or more local authorities who on behalf of any of those authorities developed and/or deliver recreational, sporting, cultural or social functions and activities, and are wholly or partially funded by any of those authorities will become subject to FOISA and the Scottish EIRs.

This refers to Arms Length External Organisations (ALEOs) established by one or more of the 32 local authorities in Scotland to develop and/or provide recreational, sporting, cultural or social functions and activities which receive funding from those local authorities. It is much wider than the section 6 provisions which relates only to companies wholly owned by one or more Scottish public authorities. This modification to FOISA will cover many different structures of organisations from Partnerships, Limited Liability partnerships, Trusts and many other different business structures.

Column 2
The bodies covered by the definition in column 1 will only be subject to FOISA and the Scottish EIRs in relation to their functions mentioned in Column 2. Column 2 refers to a number of sections of legislation which give local authorities the power to carry out certain factions. The functions are listed below with a brief explanation of what they mean.

Section 90 of the Local Government (Scotland) Act 1973
This section gives local authorities the power to carry out certain functions in respect of tourism. This includes the provision, or encouragement of any other person to provide, facilities for leisure, conferences, trade fairs and exhibitions or improve, or encourage any other person to improve, any existing facilities for those purposes; the promotion, by advertisement or otherwise, of facilities provided by that local authority (whether such facilities are owned by the authority or otherwise); and the organising, or assisting others in the organisation of, and promotion, by advertisement or otherwise, conferences, trade fairs and exhibitions.

Section 163 of the Local Government (Scotland) Act 1973
This section (or what is left of it) gives local authorities a duty to provide adequate library facilities for all persons resident in their area.

Section 14 of the Local Government and Planning (Scotland) Act 1982
Broadly speaking, this section places upon local authorities a duty to provide adequate provision of facilities for the inhabitants of their area for recreational, sporting, cultural and social activities.

Section 20 of the Local Government in Scotland Act 2003
This section provides for a general power for local authorities to do anything that it considers is likely to promote or improve the well-being of its area and/or any persons in its area.

What does it actually mean?

I am not so sure that any of the above actually brings us closer to understanding just who will be subject to FOISA and the Scottish EIRs following the entering into force of the 2013 Order. Some of the most notable examples though will include leisure trusts (which are not companies, who are already subject to FOISA and the Scottish EIRs) and bodies responsible for the provision, maintenance and development of library facilities.

There are certainly benefits to drafting the 2013 Order in this way. Had the Scottish Ministers simply listed specific bodies it would have become out of date very quickly. The provision of services by local authorities is very fluid and can change overtime. ALEOs can exist and then be merged or wound-up, their functions can be taken back in-house only to later be put out to another ALEO. It will largely protect against the fluidity of ALEOs and should hopefully ensure that we don’t see (at least in respect of services provided by local authorities) the reduction in information access rights that has been seen since the introduction of FOISA in 2005.

How to know if a body is covered
In the first instance it is going to be largely up to the individual body to determine if it is covered by the extension, and if so to what extent. In theory they should already have been making preparations by putting in place a publication scheme (which in practice will likley be simply to adopt the Commissioner’s Model Publication Scheme) and a framework for dealing with requests. However, there might have to be some testing of the law in respect of some bodies.

The easiest way to find out if a body is covered is probably to approach the body. If they say that they are then you can go ahead and make your request like you would to any other Scottish Public Authority (‘SPA’). However, if they say they are not you might have to be a bit more persistent. Ultimately, it will be for the Scottish Information Commissioner (as the person responsible for enforcing FOI law in Scotland) to determine whether a body is a SPA or not. She can only accept an application after a request for information has been made and a request for internal review has also been made. This will mean that it will be necessary to go through the process of submitting a request and either waiting for word from the body that they won’t respond or for 20 working days to elapse without a response before then submitting your internal review and again waiting for word from the body that they won’t respond or for 20 working days to elapse without a response.

A determination by the Commissioner that a body is (or isn’t) a SPA by virtue of the 2013 Order wouldn’t necessarily be the end of the road. A decision by the Commissioner that an application cannot be accepted by her is open to the possibility of an application for Judicial Review, while a decision notice issued against a body that disagrees with the determination that it is covered could be open to appeal to the Court of Session under section 56 of FOISA (and then to the Supreme Court).

*by virtue of Regulation 2 of the Scottish EIRs any body listed in Schedule 1 to FOISA or designated under Section 5(1) of FOISA is also subject to the Scottish EIRs.