osic annual report
TRANSCRIPT
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The 2011/12 Annual Report of the
Scottish InformationCommissioner
Upholding the right toknow in Scotland
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Contents
Welcome ................................................................... 01
2008-2012:A strategic review ................................. 02
Appeals: Where they came from .................................. 04
Appeals: What we did with them .................................. 06
Review 2011/12: Investigations ..................................... 08
Investigations performance ........................................ 10Review 2011/12: Promoting FOI .................................. 12
Contact with our ofce: Enquiries ............................... 14
Contact with our ofce: Information requests ............... 15
Case studies ............................................................. 16
Review 2011/12: Assessing and improving practice ....... 18
Review 2011/12: Managing the organisation ................. 20
Going forward together .............................................. 22
Financial overview ...................................................... 24
FOI Freedom of information
FOISA, the FOI Act Freedom of Information (Scotland) Act 2002
EIRs Environmental Information (Scotland) Regulations 2004
Applications, appeals Appeals to the Commissioner under FOI legislation
SIC, The Commissioner The Scottish Information Commissioner
Guide to terminology
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Welcome
Signicant milestones in 2011/12 included: After nine years as the rst Commissioner, Kevin demitted
ofce in February, leaving a well-run organisation and a
substantial body of decisions. The close of the 2008-2012 strategic plan, which delivered
e.g., innovations in approaches to publication schemes and
practice assessments.
Performance exceeded targets the average case journey
time fell to 15.9 weeks, with a dramatic reduction in the
age of appeals.
Kevin published Freedom of Information in Scotland
in Practice and laid a special report on the state of
FOI in Scotland before the Scottish Parliament.
The contribution of important evidence to the consultation
on the FOISA Amendment Bill.
Contributions to a range of consultations, research
into FOI, the Centre for FOI and publication of guides
and briengs.
Like many publicly funded organisations, the Commissioner
experienced funding cuts by March 2014 we will achieve
savings of 15%. Everyone worked hard to introduceefciencies which delivered more with less.
But there is still much to do. Although we welcome the
FOISA Amendment Bill for strengthening some areas of
FOISA, it is disappointing that the issue of designating
additional bodies continues to be deferred with no indication
of when it will be revisited. The delivery of public functions
is increasingly complex and we need a well thought out
approach to designation. We cannot afford the risk that
citizens rights to information will be undermined because
FOI legislation does not keep pace.
It has often been said that the only constant is change.This is particularly true for us. My appointment is giving us
the opportunity to question and prioritise what we do in an
environment of constrained funding for all Scottish public
authorities, changes to the way public functions are delivered,
and increasing numbers of appeals. We are fortunate; our
strong FOI legislation is valued highly by the public and
applied by experienced and knowledgeable people in our
public authorities. I plan to build upon these assets.
We are a small organisation, with limited resources, and
Im condent that by working with others we can contribute
substantial expertise and so make a big difference.
Rosemary Agnew
Scottish Information Commissioner
I am delighted to present the 2011/12 Annual Report of the Scottish Information
Commissioner. As I only took up ofce on 1 May 2012, it focuses on the
achievements of the former Commissioner, Kevin Dunion, and our staff.
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Strategic Aim 1
Case closures length of investigations
Investigative capacity will be used to
signicantly reduce journey time.
How did we do?
In 2008/09 average age of valid
appeals closed was 6.4 months.
By 2011/12 wed brought this down
to 3.7 months.
In the same period the average
age of open appeals dropped from
5.3 months to 3.1 months.
Strategic Aim 2
Compliance
Resources will be dedicated to
investigate the practice of public
authorities and to identify measures to
improve compliance with the FOI Act
and Codes of Practice.
How did we do?
We assessed 31 public authorities,
agreeing action plans to help themimprove practice.
We published online assessment
checklists which authorities can use
to test their own practice.
We issued two Practice
Recommendations.
In 2008, we laid our four-year strategic plan, A Really Open
Scotland before the Scottish Parliament. It set out our vision for
FOI in Scotland in 2012. The plan described our aspirations for
2008 to 2012, expressed as six themed areas. In this report,
we draw that plan to a close and reect on how well we met the
strategic objectives which we set back in 2008.
Strategic Aim 3
Awareness
Specic sectors of society will be targeted
to ensure that they are aware of their rights
and the potential use of FOISA/the EIRs.
How did we do?
Awareness of FOI stood at 80% in 2011.
We achieved this through a programme
of activity, mostly targeted at voluntary
organisations:
Awareness campaign in 2010,
targeting voluntary sector media
Video case studies showing how
community groups have used FOI
Presentations to community and
voluntary organisations
Roadshows for the voluntary sectorattended by 151 delegates by the
end of 2011/12.
Our joint research project with the
University of Strathclyde identied barriers
faced by the voluntary sector in using their
FOI rights.
The Scottish freedom of information regime has a highreputation internationally, due in no small part to the qualityof the Commissioner's ofce. Our track record has been ofyear-on-year improvements in efciency and service delivery.I am delighted to have left a legacy of well-founded decisions,sensible settlements and helpful practice assessments to be
drawn on by the new Commissioner as she faces the excitingchallenge ahead.
Kevin Dunion
2008-2012:
A strategic review
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Strategic Aim 4
Practice
Build knowledge of, and promote good
practice by, authorities and applicants
through research, publication scheme
approval and a reference group of
key specialists.How did we do?
We provided advice and guidance
to members of the public and public
authorities in a number of ways:
Responded to 6,378 enquiries
between 2008/9 and 2011/12
Issued 22 newsletters to over
1,600 subscribers
Ran events in partnership with
Holyrood Conferences and theCentre for Freedom of Information in
Dundee - attracting 1,381 delegates
Ran sold-out events at the
Scottish Parliaments Festival of
Politics in 2009, 2010 and 2011.
We improved our online resources:
Dedicated web pages on
assessing and improving practice
Updated guidance on exemptions
and FOI rights.
We approved 507 publication
schemes and introduced a new
approach in 2010 a single model
scheme based on best practice.
Strategic Aim 5
Development
Benecial changes to legislation,
regulation and codes will be identied
e.g. designation of additional
authorities. We will address areas of
uncertainty regarding the applicationof the legislation.
How did we do?
Our views were sought on a range of
legislative and policy developments:
Crerar Review
Review of Scottish Parliamentary
Corporate Body (SPCB) supported
bodies
Scottish Parliamentary Commissions
and Commissioners etc. Bill Public Records (Scotland) Bill.
Our views on extending the
timescale for prosecuting offences
under section 651 were reected in
the FOISA Amendment Bill.
We made a strong case to Ministers
for designating new bodies under
the FOI Act, and were disappointed
when this did not go ahead. We
continue to pursue this.
The Ministers sought and reected
our views in their review of section
60, 61 and 62 Codes of Practice,
and in new guidance on the INSPIRE
(Scotland) Regulations 2009.
We made a special report to the
Scottish Parliament in 2012,
Informing the Future before
Kevin Dunion demitted ofce.
Strategic Aim 6
Reference
Publish detailed reference material
bringing together our experience and
approach in publications, drawing
upon our interpretation of the law,
international comparisons, platformdecisions, legal advice, court cases,
and evidence of good and bad practice.
How did we do?
Kevin Dunion published Freedom
of Information in Scotland in
Practice a handbook for FOI
practitioners and FOI users.
1 It is an offence, under s65, to alter, deface, block, erase,destroy or conceal a record which has been requested withthe intention of preventing disclosure
Annual Report 2011/12 3
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Appeals:
Where they came from...
2010/11 2011/12
Administration of the authority 18% 21%
Safety and crime 6% 10%
Transport and roads 4% 9%
Property 4% 8%
Employment and employees 14% 6%
Court and legal action 5% 5%
Planning 6% 5%
Finance and expenses 10% 4%
Health 2% 4%
Commercial activities and contracts 4% 3%
Education and learning 3% 3%
Environment 1% 2%
Care (children and older people) 2% 2%
Regulatory 3% 2%
Leisure and parks 0% 2%Housing 2% 1%
Building control 0% 1%
Economic 0% 1%
Grants and funding 2% 1%
Water and sewerage 5% 1%
Licensing 0% 1%
Agriculture and sheries 0% 0%
Other 9% 8%
Subject of appealsTotal appeals by legislation
FOISA
EIRs
476
48
387
37
380
33
2011/122010/112009/10
Most appeals1 continue to come from individuals without an
identied afliation to any particular group.
The overall trend is upward. Appeals relating to Ministers and the Scottish Parliamenthave, in contrast with the generally downward trend for this sector in previous years,increased to 28%. Local government represents the largest share of our appeals.The share of appeals about nance and expenses has decreased, but appeals aboutsome policy areas have grown e.g. transport, roads, crime and property.
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Appeals by sector 2011/12
45% Local government 28% Ministers, theScottish Parliament
7% Other publicauthorities
5% Police
4% The NHS
4% Educationalinstitutions
3% Non-ministerialofce holders
3% Bodies not coveredby FOISA3
1%Publicly owned companies
1 Percentages may not add up to 100% due to roundings2 Categorised as adults where no afliation is st ated. Where applicants advise they are
16 or under we categorise them as Young person but there were none in 2011/123 Includes bodies covered by the EIRs but not FOISA
Appeals by sector 2010/11
42% Localgovernment
15% Ministers, theScottish Parliament
16% Other publicauthorities
3% Police
5% The NHS
7% Educationalinstitutions
5% Non-ministerialofce holders
3% Bodies not coveredby FOISA3
5%
Publicly owned companies
1% Elected representative(MP, MEP, MSP, Councillor)
2% Voluntary / campaignorganisation
6% Commercial /private enterprise
2% Solicitor
12% Media
77%Adult2
1% Public authority
9% Commercial /private enterprise
1% Communitycouncil
1%Trade union
1% Voluntary / campaignorganisation
2% Elected representative(MP, MEP, MSP, Councillor)
75%Adult2
9% Media
1% Solicitor
Appeals by type of applicant 2011/12Appeals by type of applicant 2010/11
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Appeals:
What we did with them...
2009/10Number of appeals
2010/11Number of appeals
2011/12Number of appeals
Brought forward from previous year: 144 168 118
New appeals 413 424 524
Total caseload: 557 592 642
Appeals closed: the early stages
Premature or out of time 18 13 26
Withdrawn or abandoned 9 13 20
Settled 0 0 0Excluded under s48 6 12 6
Format invalid 8 9 3
Body not covered 6 6 8
No request for review made 30 44 47
No request to public authority 28 15 21
Other deciency 0 0 1
Sub-total 105 112 132
Appeals closed: during investigation/informal resolution
Withdrawn or abandoned 55 55 80
Settled 47 43 49
Frivolous or vexatious 2 1 2
Other 1 0 0
Sub-total 105 99 131
Appeals closed: with decision
For applicant 65 64 93
For authority 63 77 96
Partially upheld 51 122 65
Sub-total 179 263 254
Total appeals closed: 389 (70%) 474 (80%) 517 (81%)
Total appeals carried forward to next year: 168 (30%) 118 (20%) 125 (19%)
Appeals closed by stage
Appeals1 increased by 24% in 2011/12.
Our case study pages explain our approach to dealing with appeals. They can be closed asinvalid, settled during investigation or closed after investigation with a decision. A greatershare of appeals were closed without the need for a decision during 2011/12 41% wereclosed before or during investigation, compared to 36% last year.
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26%Partiallyupheld 37%
For applicant
38%For authority
Outcome of appeals closed with decision 2011/12
16% No request topublic authority
20% Premature orout of time
15% Withdrawn orabandoned
5% Excludedunder s48
2% Formatinvalid
6% Body not covered
1% Other deciency36% No request for
review made
Reasons for closure without investigation 2011/12
2% Frivolousor vexatious
37% Settled
61% Withdrawn orabandoned
Appeals closed during investigation 2011/12
2009/10
2010/11
2011/12
FOISA
EIRs
Appeals closed with decision FOISA/EIRs
158
21
219
44
223
31
1 Percentages may not add up to 100% due to roundings
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Review 2011/12:
Investigations
Closing appeals more quicklyIn 2011/12, we set out to reduce the time we took to
close the appeals we investigated to 20 weeks (compared
to 22 weeks in 2010/11). In the event, our average appealclosure time for 2011/12 was well under this, at 15.9 weeks.
This was despite the fact that the number of appeals we
received, at 524, was 100 more than the previous year,
and we were working with fewer staff than in 2010/11.
In January 2011, we made some important changes to the
way we carry out investigations. We issued new guidance
to all public authorities, called Getting it right rst time,
in which we made it clear that they had one opportunity
to provide us with submissions, and that it was their
responsibility to satisfy us that their position was correct.
At the same time, we also made some changes to the
types of information we asked public authorities to provide
us with, with the aim of processing appeals more
quickly and reducing unnecessary burden on authorities.
These changes, brought in just before the start of 2010/11,
have helped reduce overall timescales.
Settling more appeals informallyWe have learned, over the past few years, that settling
appeals without a formal decision by the Commissioner
can be a positive outcome for both applicants and publicauthorities. Applicants often obtain information more quickly
this way. This is also of benet to authorities because it
results in more efcient processing of FOI appeals for them,
and demonstrates their commitment to getting it right.
Settlement often involves one of our team working with both
parties to nd an acceptable solution. 37% of the appeals
we resolved informally during 2011/12 were disposed of in
this way, and in many of these, information was disclosed as
a result of us becoming involved in the appeal.
Issuing decisionsOf course, settlement will not always be the best route,and we also closed 254 appeals with formal decision in
2011/12. Of these, three were appealed to the Court of
Session1. Two appeals were subsequently withdrawn and,
in the third, court action has been suspended while the
Scottish Legal Aid Board decides if the applicant is entitled
to legal aid. The fact that so few of our decisions were
appealed to the courts suggests that the results of our
investigations were generally accepted, and that the
decision notices themselves were understandable and
technically correct.
We are committed to dealing with appeals efciently, and to a high
standard, so that information that should be released is provided to
applicants as quickly as possible.
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Resolving to help authoritiesreduce technical failuresHowever 2011/12 also saw a worrying growth
in appeals to us as a result of technical failings
that is, errors in the way a request for information
has been dealt with. Examples of technical failures
include where a public authority has responded to an
information request too late, or even worse, failed torespond at all. 29% of all appeals in 2011/12 involved
only technical issues, compared to 22% in
the previous two years.
Technical errors are particularly frustrating for
authorities and applicants alike because they are
often easy to avoid. For example, training can help
staff recognise information requests, and robust
procedures enable authorities to respond to requests
(and requests for review) within the statutory
20 working days. A critical lesson for us has been
to recognise the need for, and our role in, providingmore practical training and support for authorities
to help them get it right, and in doing so avoid
unnecessary, often expensive and time-consuming
appeals to us. And of course it is better for applicants
if authorities deal with their requests correctly in the
rst place.
Identifying vital improvements neededto Scotlands FOI lawUnder FOISA, it is a criminal offence to alter, destroy
or conceal a record in order to prevent information from
being disclosed. As the law currently stands, criminal
proceedings must be raised within six months of this
offence being committed. However, it can take months
for an offence to come to light, making it difcult forproceedings to be raised in time. During 2011/12, we
called for the Scottish Government to resolve this by
extending the timescale for raising criminal proceedings.
We were delighted when the Governments FOISA
Amendment Bill included provisions which will allow
criminal proceedings to be raised six months from the
date when an offence comes to light (rather than the
date when the offence was committed).
www.itspublicknowledge.info/Decisions
Im delighted that we have continued toreduce the amount of time it takes us to investigate
appeals, in spite of reduced resources and a
heavier caseload. Well continue to focus on
investigating appeals efciently and helping
authorities to deal with requests properly.
Margaret Keyse Head of Enforcement
1 Two by applicants and one by a public authorit y
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Investigations performance
2009/10 2010/11 2011/12
Appeals closed: the early stages
4 months or fewer 90 109 129
More than 4 months 15 3 3
Total appeals closed 105 112 132
Appeals closed: during investigation/informal resolution
4 months or fewer 81 88 125
More than 4 months 24 11 6
Total appeals closed 105 99 131
Appeals closed: with decision
4 months or fewer 67 87 159
More than 4 months 112 176 95
Total appeals closed 179 263 254
Age prole of appeals closed
Appeals closed within 4 months
0-4 months4-6 months
6-9 months
9-12 months
12+ months
At 31/03/2012
72%
13%
9%
3%
3%
At 31/03/2011
48%
15%
20%
11%
6%
At 31/03/2010
52%
16%
19% 8
%
5%
We are closing more appeals1 more quickly, despite strong
growth in appeals and reduced resources.
63% of the appeals closed with a decision were closed within four monthscompared to 33% last year. The average age of our caseload also droppedagain this year. 85% of the appeals under investigation at the end of 2011/12were less than six months old.
1 Percentages may not add up to 100% due to roundings
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Age prole of appeals under investigation 0-4 months
4-6 months
6-9 months
9-12 months
12+ months
At 31/03/2012
71%
14%
13%
1%
1%
At 31/03/2011
68%
16% 7
%
2%
8%
At 31/03/2010
45%
19%
20% 8
%8%
Average age (months) of open and closed appeals
Closed during the year
Open at the end of the year
1
6
2
7
3
8
4
9
10
2008/092007/082006/07 2009/10 2010/11 2011/120
5
9.0
8.5
6.7
5.3
5.9
4.4
3.1
9.4
6.4
4.9
5.3
3.7
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Review 2011/12:
Promoting FOIThe public can only make use of their rights if they know what they are and
stakeholders need to understand how FOI works in order to make the most of
what it offers. We have a statutory duty to inform people about their rights, and in
2011/12 we ran a busy programme of activities to achieve this.
Our promotional work is all about
helping people to know their rights and
to make clear requests which get good
responses. This year we were able to
build on previous learning to deliver that
message to a wide audience but using
limited resources.
Sarah Hutchison Head of Policy and Information
We continued to explore with voluntary organisations
how FOI might support their work. We ran regionalvoluntary sector roadshows in Glasgow, Dumfries
and Galloway and Edinburgh, providing an overview
of FOI rights and practical tips on making requests
effectively. We had to run each session twice to
accommodate demand.
Our event at the Scottish Parliaments Festival of
Politics in August 2011 was sold out, with a lively
and varied audience challenging our speakers on the
impact of the internet on FOI.
The Centre for Freedom of Information, a partnership
with the University of Dundee, continued its seminar
programme, attracting FOI practitioners, lawyers
and academics. The October 2011 seminar proved
especially popular, with speaker Professor John Angel,
Principal Judge of the Information Rights jurisdiction in
the First-tier Tribunal, and others discussing different
appeal routes in the Scottish and UK FOI regimes.
In November 2011, following the earlier elections,
we ran FOI sessions in the Scottish Parliamentfor new and returning MSPs and their researchers.
A drop-in session provided practical advice on how
FOI works, and an evening event, sponsored by
Jackie Baillie MSP, used examples to demonstrate
how MSPs can use FOI to support their constituents.
We gave presentations with the UK Information
Commissioners Ofce, including a workshop
at the Scottish Council for Voluntary Organisations
Gathering and another for the Scottish Governments
Planning Directorate. Working together allowed us to
cover both FOI and data protection issues.
The Holyrood FOI conference in December 2011
attracted over 90 delegates to hear about
developments in FOI law and the experience
of the outgoing Commissioner.
Engaging stakeholders
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Improving our websiteOur website is a critical vehicle for providing information on FOI rights
and responsibilities. Developments during the year included:
Resources for authorities on assessing and improving practice
Guidance for elected members using FOI
Statistics on applications
More information about our nancial management and governance.
We improved our home page to help visitors nd content more easily,
and also improved accessibility, achieving a Web Content Accessibility
Guidelines (WCAG) A rating. Visits increased by 19%, attracting
129,000 visits over the year.
Sharing learning with ParliamentIn January 2012, Kevin Dunion laid a Special Report, Informing
the Future The State of Freedom of Information in Scotland before
the Scottish Parliament, sharing his learning with policymakers before
he demitted ofce. He gave evidence to the Justice Committee on
how to safeguard and strengthen information rights in Scotland.The Scottish Government incorporated some of his proposals into
the FOISA Amendment Bill.
Using research to learn more about FOI in ScotlandWe continued, in partnership with the University of Strathclyde, to
gather voluntary sector experience of using FOI. The nal research
report, published in July 2012, highlights some concerns that using FOI
may damage funding and other relationships with public authorities. In
December 2011 an Ipsos MORI poll conrmed that 80% of the Scottish
public are aware of their FOI rights.
www.itspublicknowledge.info/YourRights
Case study
Making Freedom ofInformation Work for You
On 31 August 2011 we hosted a free FOI
roadshow in partnership with the Glasgow
Council for Voluntary Service (GCVS).GCVS promoted the event to local voluntary
organisations, and it was so over-subscribed
that the half-day workshop ran twice to
accommodate all those wishing to attend.
We provided a detailed brieng on FOI rights,
and this was followed by powerful practical
examples of FOI use from the C Diff Justice
Group and the Learning Disability Alliance
Scotland. The interactive format included
discussions and identied top tips for making
effective requests. 98% of the 65 participants
rated the roadshow as excellent or good.
As a result of the workshop, 90% had a better
understanding of their rights and 93% could
now see how FOI might be useful to them.
A roadshow participant observed:
This is an excellent course for the
voluntary sector to attend and benet
from. It makes FOI comprehensible
and not something to be frightened to
use to get the information they needin a timely way.
The Commissioners website provides
resources for the voluntary sector, including
guidance in plain language, hints and tips,
case study videos and information about
forthcoming roadshow events.
www.itspublicknowledge.info/VoluntarySector
What people think1
% of respondents
aware of the law
(76% in 2009)80% agreed that trusts
providing services on
behalf of local authorities
should be covered
88% disagreed withthe suggestion that
FOI was a waste of
public money77% of respondents agreedthat it is important for the
public to be able to access
information held by public
authorities
891 Ipsos MORI poll, December 2011 results
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Total Enquiries2 by Type of Enquirer 2011/12
1 Percentages may not add up to 100% due to roundings2 Excludes complaints and information requests to the Commissioner
3 Categorised as adults where no afliation is stated. Where enquirers advise they are16 or under we categorise them as Young person but there were none in 2011/12
Total Enquiries2 by Month 2011/2012
Apr
136
May
128
Jun
131
Jul
144
Aug
145
Sep
161
Oct
144
Nov
152
Dec
123
Jan
135
Feb
140
Mar
139
59%Adult3
1%Academic/student
2% Elected representative(MP, MEP, MSP, Councillor)
7% Media
4% Commercial /private enterprise
21% Public authority
3%Solicitor
4%Voluntary / campaignorganisation
Contact with our ofce:
Enquiries
Total Enquiries2 by Year
2007/08
2008/09
2009/10
2010/11
2011/12
1,2
64
1,4
64
1,6
02
1,6
34
1,6
78
Responding to enquiries1 is one
of the key ways in which we help
people learn about their rights and
obligations under FOI.
We answer around 140 enquiries per month.The majority 59% - come from the publicbut we also respond to public authorities, themedia, companies, elected members andvoluntary organisations.
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Information requests to the Scottish Information Commissioner2009/10 2010/11 2011/12
Publication scheme enquiry 40 22 39
Request for information held by Commissioner: 153 158 138
FOISA 151 154 135
EIRs 2 4 3
Information provided in full 55 47 44
Information partially supplied 18 20 17
Information not held by the Commissioner 69 72 67
Information not supplied: 11 19 10
Not within remit 0 0 0
Request withdrawn 4 10 2
Vexatious/manifestly unreasonable 0 0 2
Exempt 6 4 5
Clarication sought 1 4 1
Information request invalid 0 1 0
Number of times a fee was charged: 0 0 0
Request for review: 2 5 3
Internal review upholds original decision in full 2 4 2
Internal review partially upholds previous decision 0 1 1
Subject Access Request
(Data Protection Act) 4 4 6
Proportion of requests answered within
statutory timescales:
99%
100%
100%
Number of requests answered within statutory timescales 152 158 138
Number of requests answered outwith statutory timescales 1 0 0
Contact with our ofce:
Information requests
We ourselves are a Scottish public authority, subject to FOI
law and must respond to requests for information that we hold.
We answered 99% of requests within the statutory timescales in 2011/12.Nearly half of requests made to us were for information we did not hold butwhere we did hold information we provided some or all of it in 86% of cases.
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Case studies1. Early stagesIn the early stages we decide whether an appeal is valid
can we accept it for investigation?
If we can't, we explain why and advise the applicant about
any alternative ways of obtaining information, or signpost
them to other organisations.
We help applicants to make valid appeals by guiding them
through the steps they must follow and by making sure they
send us all the information we need. Not all appeals are valid
and we help people to understand the reasons why.
See Lessons Learned for ways of avoiding making
appeals that are not valid.
3. DecisionThe Commissioner makes binding decisions on valid
appeals that are not resolved during investigation. They are
often complex because of the legal arguments, but explain
the reasons for the Commissioners conclusions.
The investigator always monitors compliance where the
Commissioner requires an authority to take action: most
comply in good time. If they dont, she can refer the
authority to the Court of Session, where they may be found
in contempt of court.
If either party thinks the Commissioner made a mistake,
they can appeal the decision to the Court of Session on
a point of law. This is rare.
2. Investigation andinformal resolutionWe only investigate valid appeals. We:
Invite the public authoritys comments we must by law.
It is up to the authority whether they respond, or answer
questions such as why they applied a particular exemption
or what searches they made Ask the applicant, and others, for additional information
when we need to
Carry out research to understand better the appeal
and the context
Weigh up facts and evidence and, where possible,
facilitate a settlement as FOI legislation allows us to.
Applicants do not have to settle they have a legal right
to a decision if that is what they prefer.
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Obtain your own personal
data under data protectionlegislation, not FOI.
Check if the body is coveredby FOI before you make arequest to them we canadvise.
Make your informationrequest to the authority rst dont come straight to us.
Make your request clear ifyou are not sure how to wordit, seek advice.
You must give the name of
the true applicant. Ask the authority to review
how it handled your requestrst time round, beforeappealing to us.
Keep a copy of your requestand any responses youreceive you will need theseif you appeal to us.
Narrowing your request canhelp you receive some of theinformation you want.
Check the authorityspublication scheme theinformation you want may bepublished already.
Pick up the phone anddiscuss your request it mayresult in information beingreleased more quickly.
If you appeal to us, we maycontact you to discuss apossible settlement. Youdo not have to settle but itmay lead to a better outcomefor you.
If you dont hear from anauthority, remember you canask them for a review andappeal to us.
You have the right to expecta response to any requestyou make.
Answer any questions ourinvestigators ask you asquickly and fully as possible.If you are unsure about whatis being asked contact usfor advice.
Advise and assist applicants
on how to make validrequests not only do youhave a duty but it is goodpractice too.
Inform applicants of theirright to request a review andan appeal.
Tell applicants that they
must provide the name ofthe true applicant.
Ensure your front line staffcan recognise FOI requests.
Help applicants narrow theirrequests rather than refusethem outright.
If its not possible to releaseinformation under FOI thinkof other ways that informationmight be released.
Check whether theinformation youve beenasked for is publishedalready.
If a requester makes anappeal to us, make surethat you send us clear andcomprehensive comments onthe appeal, or in answer toour questions. Although wemust invite comments it is upto you to provide responses
in sufcient detail to supportyour handling of the request.
Robust logging andmonitoring prevents FOIrequests from going astray.
Conduct adequate searches good records managementmakes this easier.
Avoid technical decisions byhaving clear procedures inplace that mean you dont
miss deadlines.
Give clear explanationsfor your decisions.
If a decision requires action take it promptly.
Lessons learned
Applicants
Applicants
Applicants
Authorities
Authorities
Authorities
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When we receive an invalid appeal, we will always seek
to help an applicant take the necessary steps to resolvethis, rather than simply reject the appeal as invalid. This
can include negotiating with authorities and giving advice
to applicants on how to proceed. An applicant made three
requests for information to the Scottish Ministers, relating
to a banquet for a Chinese delegation. He went on to
make one request for review, but unfortunately it was not
valid as he didnt specify which of his three requests it
related to and by the time the applicant came to us, the
40 working days which the FOI Act allows for making a
request for review had passed.
We contacted the Ministers to ask if they would be willing
to take a late request for review (authorities can do this,at their discretion). They agreed, and we went on to
give the applicant some advice on how to formulate his
request for review. He went ahead with his request for
review and received information as a result.
Case reference: 201100690
When an applicant asked SCSWIS (The Care
Inspectorate) for information on all complaints about
a particular care home over nine years, the authority
refused, saying it would cost too much to comply.
We agreed that providing all the information the applicant
had asked for would cost the authority more than the
upper limit of 600, and so they were entitled to refuse.
However, we spoke with both the authority and the
applicant, and helped them agree on a narrower request
looking only at complaints held electronically, which had
been upheld, over a narrower time period. As a result, the
authority was able to give the applicant some information
which was useful to him, without charging a fee at all.
Key points from this case:
Applicants narrowing your request can make it
possible to receive some of the information you want.
Authorities helping applicants to focus their request
in a way which allows you to provide at least some
information is a good example of providing advice
and assistance.
It should be possible, in most cases, for applicants
and authorities to achieve this without our intervention
it is always worth having an open dialogue.
Case reference:201101377
Kevin OSullivan and SCSWIS (The Care Inspectorate)
Andrew Whitaker (The Scotsman) and the Scottish Ministers
Robust records management is a key building-block for
good FOI practice. When an applicant asked Ayrshire and
Arran Health Board for copies of critical incident review
reports and action plans, the Board claimed that it held
very little of the information he wanted. However, when
the appeal came to us, we asked the authority to conduct
additional searches and a large amount of relevant
information then came to light. We issued a decision
ordering the Board to release the information.
Of course, records management is not just an FOI issue it is also important for good governance. In this case,
the vital role of the information in ensuring organisational
learning to prevent future incidents led to the Ministers
ordering an investigation into the Board's records
management practices.
The lesson for all authorities is to conduct adequate
searches before concluding that no relevant information
is held. Think laterally about where information may be
held. Good records management will help make this
process more efcient.
Case reference:201100433Decision:036/2012
Mr Rab Wilson and Ayrshire and Arran Health Board
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A rm of solicitors asked East Dunbartonshire Council for
information regarding an ongoing civil claim but did notmention the name of the client on whose behalf they were
asking. When they appealed to us, we advised them that
a recent court ruling* had found that, in cases such as this,
the true applicant had to be named (in this case, their
client) or else the appeal was not valid and we cannot
investigate invalid appeals. They accepted this. It will help
them to ensure any future requests (and appeals to us) will
not be invalid for this reason.
It appeared that the Council had not raised it with them
as an issue earlier on, so we contacted the Council to
ensure that they were aware of the court decision, and our
published guidance on this issue, so that they could
change their approach.Key points from this case:
Applicants give the name of the true applicant
if asking on behalf of another person, otherwise your
request may be rejected.
Authorities if you suspect that a request has
been made on behalf of a third party, ask for the
name of the true applicant, or the right to appeal
to us will be affected.
Case reference: 201101924
*Glasgow City Council v Scottish Information Commissioner [2009] CSIH 73
A rm of solicitors and East Dunbartonshire Council
An authority should always check to see whether
information which has been asked for is already published.
Here, an applicant asked for environmental information
relating to roadworks, and the City of Edinburgh Council
responded by issuing a fees notice for 60. When the
applicant appealed to us, we asked the Council for a
detailed breakdown of how they had calculated the
fee. We found, during the investigation, that some ofthe information was, in fact, already published on the
Councils website.
We advised the Council and asked them for a revised cost,
in light of this. The Council apologised and reduced the fee
to 15 and in fact, subsequently provided the applicant
with everything they had asked for, free of charge.
If the Council had checked its own website it would have
been able to provide information to the applicant much
more quickly. An authoritys publication scheme should
make it possible for the authoritys staff and applicants
alike to identify what information is already available.
Authorities should ensure their publication scheme is
up to date and easily accessible to staff and the
general public.
Case reference:201101791
Harald Tobermann and City of Edinburgh Council
An applicant asked the Scottish Ministers for information
about Mr Brian Souter, but received no response to his
request other than an acknowledgement. When he asked
for a review, once again he did not receive a response, and
so he appealed to us.
When we investigated, the Ministers apologised and
claimed that an unprecedented number of FOI requests
to the First Minister's Ofce had led to some being
overlooked. They advised us that a new staff member
was joining the ofce to help ensure that timescales werecomplied with in future.
Key points from this case:
Applicants if you dont hear from the authority, dont
forget you can ask them for a review, and if you still dont
hear, you can appeal to us. You have the right to expect a
response to any request you make.
Authorities robust logging and monitoring systems can
prevent requests going astray. Its an investment up front,
but can prevent time consuming and costly appeals being
made to us, down the line.
Ensure FOI is properly resourced, especially in an area
where you know you are likely to receive a number of
information requests.
Case reference:201102280Decision:045/2012
Rami Okasha and the Scottish Ministers
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Review 2011/12:
Assessing and improving practice
We have a statutory duty to promote good practice to help Scottish public
authorities meet their obligations under the law and Ministerial Codes of Practice.
A new approach to proactive publicationAll Scottish public authorities must have a publication
scheme - a document describing the information they
publish without waiting to be asked. Authorities should
share information with the public on a routine basis.
Proactive publication is not just a statutory duty; it helps
authorities manage FOI requests more effectively and
efciently.
Good publication schemes may not reduce the volume
of requests, but they often make it easier to respond to
them. Approving individual publication schemes can be
time consuming for the Commissioner and for authorities,
so we needed to nd a better way, and to focus on
whether information is actually being made available
in line with schemes.
Public authorities generally prefer to adopt a model
scheme where one exists for their sector. In 2011 we
introduced a single Model Publication Scheme (the Model
Scheme) which any authority can adopt. This approach:
Builds on the learning and good practice accumulated
across all sectors since FOI came into force
Provides clarity to public authorities about the
information they should make routinely available
Provides a consistent approach which makes it
easier for the public to understand what authorities
are publishing
Offers a notication process authorities simply
notify us they have adopted the Model Scheme.
The approach was adopted by 317 public authorities
in 2011/12, and all central government bodies have
indicated that they will adopt the Model Scheme in
2012/13. We focused on where we can add most
value, that is monitoring whether authorities are actually
publishing information.
The new single Model Publication Scheme could
not have been achieved without signicant supportfrom public authority FOI practitioners. Scotland
has some great examples of good practice in the
proactive publication of public information.
Sarah Hutchison Head of Policy and Information
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Assessing individual public authorities practiceWe continued to assess individual public authorities compliance
with the FOI Act and the Scottish Ministers Codes of Practice.
We worked intensively with individual authorities to help them
recognise their own good practice and work on areas for
improvement. 11 assessments were carried out in 2011/12.
We also carried out our rst desktop assessments - where we
identied a public authority for assessment, but felt that this could
be done effectively without a visit an example of how we aim to
achieve results through more efcient use of resources.
Assessment reports are published on our website, and we are now
gathering useful learning on common areas where authorities can
improve practice. Weve shared this learning at a number of talks
we gave to authorities during the year.
There are some typical areas where practice falls short:
Training (especially in relation to the EIRs)
Keeping FOI policies and procedures up to date
Ensuring template letters include details about
requesters rights
Improving monitoring and reporting to help comply
with statutory timescales.
We noticed that many of the public authorities we assessed have
a central team which administers requests on behalf of the whole
organisation. Whats appropriate will vary according to individual
authorities, but where they have been used, we agreed that
centralised structures worked.
We expect the emphasis of assessments to move from enforcement
and direction to enabling, sharing and communicating good practice.
Freedom of Information in Scotland in PracticeIn October 2011, former Commissioner Kevin Dunion launched a
book: Freedom of Information in Scotland in Practice, published
by Dundee University Press. The result of a two-year project, it
provides extensive in-depth commentary on Scotlands FOI laws,
and is a useful resource for both FOI practitioners and requesters.
www.itspublicknowledge.info/Practice
They told us that the main attractions of the
new approach were that:
It offered greater consistency for the public
It was easier for staff to use
Above all, it embodied best practice.
Most authorities who had previously created
their own publication scheme told us the Model
Scheme was easier to adopt and required less
work. There is also evidence that the Model
Scheme enabled ofcers to secure internal
approval for publishing new information.
www.itspublicknowledge.info/MPS2012
of people asked said theywould recommend the ModelScheme to other authorities97%
Case study
Authorities support singleModel Publication SchemeIn a survey of the rst authorities to adopt
the single Model Publication Scheme, during
its pilot year in 2010/11, 97% said that they
would recommend the Model Scheme to other
authorities, and 37% said that the Model Scheme
encouraged them to publish more information
than they had before.
Under the new Model Scheme, authorities
simply have to notify us that they are adopting
it. While this makes life easier for authorities,
it was not the main reason they gave for
adopting the Model Scheme.
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Review 2011/12:
Managing the organisation
2011/12 was a busy and challenging year, and we achieved
a great deal with reducing resources.
Working with reducing resourcesIn common with all public sector bodies, a key challenge
has been to deliver our business with less money. A three-
year budget plan for 2011/12 to 2013/14 was developed
in 2010/11, setting out how we would meet the ScottishParliamentary Corporate Bodys (SPCBs) objective to
reduce our budget by 15% by 2013/14, while still meeting
our statutory obligations. In 2011/12 the planned budgets for
2012/13 and 2013/14 were reviewed and rened, to ensure
we remain on target to achieve that objective.
Publishing our new four-year strategic planIn 2010, new laws placed a requirement on us to lay a new
four-year Strategic Plan before the Scottish Parliament by
31 March 2012. In the plan we set out our objectives and
priorities for 2012 - 2016, how we will achieve them, atimetable and cost estimates. As required we also provided
the SPCB and the Keeper of the Records of Scotland with
an opportunity to comment on the proposed plan.
Commissioner Kevin Dunion published the four-year
plan just before he left ofce.
Preparing for a new CommissionerAt the beginning of the year we identied the potential impact
of the change in Commissioner as a key organisational risk
particularly in relation to ensuring we maintained performance,
robust decision-making and the delivery of our strategic aimsduring the transition. We planned for this by implementing
effective transitional arrangements to ensure our statutory
functions were delivered. For example, we worked with the
SPCB to prepare for the appointment of Margaret Keyse as
Acting Scottish Information Commissioner during the period
between Kevin Dunion leaving ofce on 23 February 2012
and Rosemary Agnew taking up ofce on 1 May 2012.
We have worked hard this
year to improve our efciency and
effectiveness as an organisation
doing more for less and managing
risks responsibly. Our new case
management system is an investment
in the future which will help uscontinue to do so.
David Lowrie Head of Operational Management
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Introducing a new casemanagement systemOne of our major successes this year was the
procurement, development and implementation of a new
case management system. Without an effective casemanagement system, it would be difcult for us to carry
out our daily activities efciently and effectively, and meet
our statutory functions. The former system, which had
been in place since 2005, was reaching the end of its
life presenting a key operational risk. The new system
went live, on schedule and on budget, in April 2012.
Improving the handling ofcomplaints about our serviceWe revised our procedures (earlier than required) to align
them with new guidance on model complaints handling
issued by the Scottish Public Services Ombudsman
(the SPSO). Our new simplied arrangements focus
on resolving complaints quickly and efciently at the
frontline that is, when and where the complaint arises.
We recognise that not all complaints can be resolved in
this way, and where this is the case, we will investigate to
establish the facts. The SPSO will be developing a model
scheme for complaints resolution during 2012/13, and
we will ensure our procedure is in line with this model.
www.itspublicknowledge.info/Governance
Case study
Investing to improve efciencyand effectiveness
In 2010/11 the SPCB accepted a business case
we submitted to them, to replace our old casemanagement system which had been in place since
the FOI Act came into force in 2005. All our case
work is managed through the system:
Applications
Enquiries
Requests for information
Approval of publication schemes
Management of practice assessments
Complaints.
Our case management system underpins the ofces
day to day work, and provides statistics and information
to help us manage performance at individual, team
and ofce levels. For example, most of the statistics
published in this annual report are derived from our
case management system.
In times of reduced resources it was particularly
important that the overall costs of the project would be
known, be controlled and represent value for money.
To achieve this, we conducted a procurement exercise
during 2011/12 using an Ofce of Government
Commerce (OGC) approved framework. The
successful supplier was appointed in August 2011,
and went on to design and test a system tailored to
our needs. It would not have been possible without a
committed group of colleagues, who worked together
with our supplier to ensure the various system features
worked for us.
The new case management system went live on
1 April 2012, and data from the former system was
fully migrated across a technically challenging task.
The project was completed on time and on budget.
Complaints do not include requests for review of how the Commissioner hashandled an information request, or appeals against the Commissioners decisions
Complaints about the Scottish Information
Commissioner 2011/12
Complaints
not upheld
Complaint resolved
informally
4
1Total
complaints5
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Compliance and practiceimprovements: Comprehensive assessmentsof public authority practice will be conducted, including
more in-depth consideration of issues which would
adversely affect the entitlement of applicants
Case closure efciency: Investigativecapacity will be used to safeguard achievements
in reducing journey time to closure, in spite of
resource constraints, and a new case management
system will be introduced
Proactive transparency:Uptake of the Commissioner's Model
Publication Scheme will be encouraged,
to further promote the proactive publication
of information by public authorities
Going forward together
Strategic aims2012-16
One of our key challenges, in common with all public bodies,
is how to deliver a high quality, comprehensive service with
increasingly reducing resources. We recognise that thischallenge exists as much for other Scottish public authorities
as it does for us. For my staff and me, the particular challenge
is to continue to process appeals efciently, effectively and
economically but without seeing work in other areas diminish
in either quality or impact. In particular, we need to ensure that
we continue to promote FOI, protect the right to know, engage
fully in relevant consultations, including the FOISA Amendment
Bill, and continue to press for the extension of FOI to additional
bodies. The right to information must not be eroded, either
through poor FOI practice or because of changes to
the ways in which public services are delivered.
The rst few months of my tenure as Commissioner will betaken up with reviewing and planning the actions we need to
take to deliver our strategic aims. A thread running through all of
them will be how we can learn, share good practice and enable
organisations to either reduce the cost burden of FOI through
practice efciencies, or enable them to add value in other ways,
such as using FOI to support a communication or transparency
agenda. One of the early actions we have already taken is to
issue a weekly round-up of decisions, drawing out key learning
points so that authorities and applicants can see at a glance
what the emerging issues are. Our approach of adding value
informed our Operational Plan which can be viewed atwww.itspublicknowledge.info/OperationalPlan
and which will be monitored and reviewed regularly.
2012/13 promises to be as interesting and challenging a year as the
last one, including as it does my appointment and the progress of the
FOISA Amendment Bill not to mention making decisions and pursuing
achievement of our strategic aims.
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Working with reduced resources:Focus on continuously seeking to increase the
efciency, effectiveness and economy of the
Commissioner's ofce
Over the coming year we will be engaging with our
stakeholders to learn about their experiences as
authorities and applicants, with a view to providing
further guidance and support on how to get the most
out of FOI in the most effective way. This will help us to
develop a programme of activity that goes well beyond
the next twelve months.
www.itspublicknowledge.info/StrategicPlan
Over the next three years we will: Publish more information for applicants and
organisations who help them, so they can get the
most out of FOI and understand what they can
expect from Scottish public authorities.
Provide on-line tools to authorities to support the
sharing of good practice, efcient handling of FOI
requests and practical procedural advice. We aim
to reduce the number of appeals we uphold as
technical cases because authorities did not respond
within timescales.
Research key aspects of FOI and its
effectiveness, engaging with our stakeholders
as much as possible.
Report on and press for appropriate changes
to FOI law, including extending the number of
organisations subject to FOI.
Raise the prole of FOI for policy and law makers,
so that access rights become embedded into allaspects of public services.
Continue to use our voice in the
international FOI community.
Rosemary Agnew
Scottish Information
Commissioner
Professional exchangeand public awareness:A strategic plan for the Centre for
Freedom of Information will be
developed and we will continue to
promote awareness of the public's
rights to information
FOI development:The Commissioner will contribute to Ministerial
consultations on legislative amendments, and
make further proposals to Ministers on the
designation of new bodies
We will not stop challenging, we will keep
looking for efciencies for ourselves and our
stakeholders, and we will continue to make good,robust decisions in a reasonable time.
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Financial overview
Year ended31/03/2011000s
Year ended31/03/2012000s
Stafng costs 1,214 1,144
Operating costs
Administration* 1 258 235
Travel expenses 10 22
Property** 82 82
Audit 16 15
Depreciation 30 27
Notional cost of capital 0 0
Total operating costs 396 381
Total operating expenditure 1,610 1,525
Capital expenditure
Fixed assets:
IT Systems 1 18
Fixtures and ttings 7 0
Buildings 1 0
Intangibles:
Work in progress - case management system 0 207
Other 1 2
Capital expenditure 10 227
Total expenditure 1,620 1,752
Summary
Stafng costs 1,214 1,144
Operating costs1 396 381
Capital expenditure 10 227
Total expenditure 1,620 1,752
1 Includes legal costs of 54,000 (was 73,000 in 2010/11) incurred in defending appeals to the Court of Session
* including advertising costs, research, publications and promotion
** including rent and rates
For a full copy of our Annual Accounts for 2011/12, and more information
our nance and governance arrangements, visit our website:
www.itspublicknowledge.info/FinancialPerformance
We achieved savings of just under 5% in 2011/12, as can be seen from the summarybelow (this excludes the one-off investment in our case management system).
This is in line with the aim in our three-year budget plan to achieve overall savings of 15% by
March 2014, despite the rise in appeal numbers. The bulk of the 2011/12 savings came from stafng
costs, achieved in part through cutting posts by not replacing staff who left. There has been a
corresponding improvement in performance, illustrating that savings have only been possible through
operational and process efciencies which were the result of the combined efforts of the whole team.
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Want to know more?
www.itspublicknowledge.info
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Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews, Fife
KY16 9DS
T: 01334 464610
F: 01334 464611
www.itspublicknowledge.info