Freedom of Information is at risk again
The Scottish Information Commissioner’s annual report was published yesterday. Current Commissioner David Hamilton has been on a bit of a roll in recent months both by increasing efforts to ensure that the Scottish public sector complies with the law around information disclosure and by highlighting that his office is under increasing strain in its ability to perform this role.
His victories have included forcing much better compliance under the law within the NHS and Police Scotland and, extremely importantly, a court case that resulted in the Scottish Government being found in contempt for its failure to disclose information that had been legally requested.
One of the key findings of the report is that the number of Freedom of Information and Environmental Information Regulation requests have increased substantially in the past few years – driven by factors such as increasing public awareness and acceptance of their FOI rights, increased ease of access to FOI requests through AI (though this has a counter-side to it), and decreased willingness by government to proactively disclose information.
On the other hand, there has been a substantial uptick in the proportion of FOI requests that are not being fully fulfilled by public bodies. In 2023/24, 51% of FOI and EIR were responded to with fully disclosure and 74% with at least partial disclosure. In 2025/26 the rate of partial disclosure is still 75% but the rate of full disclosure has dropped to 47%.
In consequence, there has been a rise in the number of requests that have been refused on cost grounds or simply not responded to (rates of failure to respond have more than doubled in the past three years). Rates of requests being dismissed as vexatious, repeated or unreasonable have increased too though contrary to claims sometimes made by opponents of FOI, these remain extremely rare (less than 1% of total requests were dismissed).
The rise has been attributed to AI tools which make it easier than ever to submit requests but also easier to make a request that is based on hallucinated information. (While not stated as an example in the report, it’s easily possible for an AI to lead someone to submit an FOI to the Scottish Government about a topic that is reserved to Westminster).
We’ve also seen a rise in the number of FOIs going to appeal – again, partially because appeals are being made easier by AI tools but also due to the increase in the number of failures to disclose fully. This is something that Common Weal has encountered several times in recent months, most notably with our investigation into the First Homes Fund in which our initial response was almost entirely redacted and our appealed response merely partially so.
One aspect of particular note in that experience was the instances in the response where the Government admitted that they had been wrong to redact information under the criterion they applied (e.g. commercial confidentiality or to protect Cabinet Responsibility) but rather than disclosing the information, they instead reached for another article under which to redact it and keep it hidden.
This goes directly against the principle written into FOI regulations that there should be a presumption of maximum disclosure with redaction only applied when necessary whereas in this case it looks like redaction was the desired outcome and disclosure made only when the alternative was impossible.
There was an attempt in before the election to change this and to place maximum proactive disclosure on a statutory footing. This was argued against by the Scottish Government on the grounds that the current voluntary system was sufficient. In essence, they argue simultaneously that being forced to disclose information isn’t necessary because they can do it voluntarily, and also that they don’t need to disclose information voluntarily because they aren’t being forced to do it. That FOI Reform Bill passed its Stage 1 vote in Parliament but wasn’t given time to pass fully before the election. If it is to be reintroduced, it must now do so from scratch.
Scotland isn’t the only Government right now pushing back against our rights to Freedom of Information. Germany is preparing to reform its FOI legislation to effectively block most of its equivalent of FOI requests by massively increasing the fees charged to requesters, to restrict requests to individuals rather than organisations and to limit the right to request information to “German citizens and EU citizens living in Germany” (meaning that a non-EU citizen in Germany couldn’t request government information but could presumably still read it if someone else requested it for them). This is how easy it is for you to lose your rights and efforts to do so should be resisted.
Common Weal has been at the forefront of FOI campaigning in Scotland and our position remains that Government should operate a ‘Glass Wall’ of transparency whereby any public information that could theoretically be disclosed by a valid FOI, should be proactively disclosed on a public database without the need for someone to come up with the correct question.
Public information already belongs to you, as does your right to see it. Governments should stop standing in the way and allow democracy to operate in the only way it truly can – in the open and in the full sight of all of us.