The Scottish Information Commissioner, Daren Fitzhenry, recently published his annual report for 2018/19. Mr Fitzhenry enforces the Freedom of Information (Scotland) Act 2002 (FOISA) as well as the Environmental Information (Scotland) Regulations 2004.
According to the report, Scottish public bodies are receiving record numbers of FOISA requests. 83,963 requests were reported by them in the year 2018/19; a rise of 8% on the year before. Three quarters of these requests led to a full or partial release of information.
The number of appeals made to the Scottish Information Commissioner also increased; by 10% to 560, still just 0.7% of all requests made. Just under two thirds of the Commissioner’s appeal decisions (64%) were either fully or partially in favour of the requester.
Scottish public authorities must respond promptly to FOISA requests and no later than 20 working days. However, the report shows that they are are increasingly failing to comply with this requirement. The number of times an authority failed to respond to an FOI request rose from 601 in 2017/8 to 940 in 2018/19. 26% of valid appeals to the Commissioner were about an authority’s failure to respond.
The Commissioner has responded to this failure to comply with the FOISA time limits by making more than 250 interventions over the course of the year. A third (33%) of his basic interventions investigated authorities’ compliance with statutory timescales. Often these failures can be indications of other fundamental problems, such as FOISA management and culture issues, staff absences or procedures not working well.
A poll of Scottish adults, conducted in May 2019, found disappointing levels of confidence in public bodies’ ability to respond to requests, which were much lower than the actual performance in practice. 57% of those surveyed were “very” or “fairly confident” they would receive a response from a request to information from a public body. 38% were “not very” or “not at all confident” they would receive a response. Any increases in authorities’ failures to respond are likely to feed this perception.
FOISA requires authorities to publish information as well as respond to requests. According to the above mentioned poll, 9 in 10 people in Scotland thought it was important for public bodies to publish information about the reasons for the decisions they make, information about contracts with other organisations and information about how they spend their money.
The Commissioner is using the opportunity of his annual report to emphasise the need for authorities to do more to improve their FOISA compliance. He said on his website:
“We are seeing increasing numbers of information requests being made to Scottish public authorities.
While many are performing well, there has been a concerning increase in failures to respond to requests for information on time. Such failures impact on people’s perception of both freedom of information and the authorities themselves.
Freedom of Information brings significant benefits to authorities who comply with it. Public bodies improving their Freedom of Information practice will make a real difference not only to the requester’s experience but also to the authorities themselves.”
It’s going to be a busy year ahead for FOISA. The Scottish Parliament’s is due to complete its post-legislative scrutiny of the Act soon. This may lead to legislative changes. From 11 November 2019, registered social landlords (RSLs) in Scotland will become subject to FOISA.
Act Now has a full programme of FOISA workshops in Scotland. If you are new to FOI in Scotland or want to boost your career through gaining a qualification, our FOISA Practitioner Certificate is ideal. Read a successful candidate’s observations.