Osic Annual Report

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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

2Annual Report 2011/12


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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


1% Communitycouncil

1%Trade union

1% Voluntary / campaignorganisation


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



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




Appeals closed: with decision




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

Annual Report 2011/1213


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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


7% Media


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.

16 Annual Report 2011/12


19/30

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


20/30

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



23/30

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.



24/30

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



25/30

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



26/30

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.

22 Annual Report 2011/12


27/30

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.

Annual Report 2011/1223


28/30

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.



29/30

Want to know more?

www.itspublicknowledge.info


30/30

Scottish Information Commissioner

Kinburn Castle

Doubledykes Road

St Andrews, Fife

KY16 9DS

T: 01334 464610

F: 01334 464611

E: [email protected]

www.itspublicknowledge.info

Osic Annual Report

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