There have been a couple of developments on the Scottish FOI front which may interest our readers.

SIC's Annual Report and Accounts

Firstly, the Scottish Information Commissioner recently issued her annual report and accounts for 2015/16. As always, this is chock-full of facts and statistics. Understandably, the Commissioner has highlighted her office's achievements in meeting or exceeding 'almost all' of its investigation performance targets, and answering 100% of its own FOI requests within 20 working days. The key challenges that the Commissioner has identified for the forthcoming year are:

  • Resources - for the Commissioner's office and also for the FOI functions of public authorities, and public engagement with the concept of FOI;
  • Fluctuation in numbers of FOI requests - which the Commissioner of course acknowledges is largely outwith the control of public authorities;
  • The need to convince public authorities that having an open culture is a necessity rather than a luxury in the modern world.

Scottish Government FOI consultation

The other item of news which may be of interest is the Scottish Government's response to the consultation on the draft Freedom of Information (Scotland) Act 2002 (Time For Compliance) Regulations 2016. This consultation related to the time allowed to independent special schools and grant-aided schools, which have recently become subject to the Freedom of Information (Scotland) Act 2002, to comply with FOISA requests. The schools requested a longer time limit to reply to requests than the usual 20 working days, on the basis that they may not be able to comply with that limit during school holidays when there are limited staff on premises.

The Scottish Government has decided to allow a longer period for independent special schools and grant-aided schools. The regulations will maintain the requirement for the schools to comply with FOISA requests within 20 working days, but will disregard any working day which is not also a school day. As a backstop, schools must in any event respond in any event within 60 working days of a request being made.

The Scottish Information Commissioner and Scottish Council of Independent Schools have backed the new draft regulations. However, some figures and organisations, such as the Children and Young People's Commissioner in Scotland and the Campaign for Freedom of Information in Scotland, have opposed the changes on the basis that the regulations would create a 'two-tier' FOI regime in Scotland.

The proposed changes do not apply to state schools as it is the responsible local authority, rather than individual schools, that is obliged to comply with FOISA requests. However, campaigners have expressed concerns that the new regulations could lead to pressure from local authorities to increase the time limit for responses in a similar manner where state schools are the subject of a request.

If you have any questions about the SIC annual report or the draft regulations, or any FOI issues, please get in touch with a member of Brodies' Public Law and Regulatory team.