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Decision 203/2026

Decision 203/2026:  Individuals granted parole during 2024 

  
Authority: Scottish Prison Service
Case Ref: 202501692
 

Summary

The Applicant asked the Authority for information relating to how many people in Scottish prisons were considered for, and granted, parole in 2024. The Authority informed the Applicant that it did not hold the particular information requested.  The Commissioner investigated and found that the Authority had been entitled to inform the Applicant that it did not hold the information requested.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2), (4) and (6) (General entitlement); 10(1) (Time for compliance); 17(1) (Notice that information is not held); 21 (Review by Scottish public authority); 47(1) and (2) (Application for decision by Commissioner).

Background

  1. On 28 June 2025, the Applicant made a request to the Authority. Among other things, he asked for the following information:

    (i)  In 2024, how many people in Scottish prisons went for parole and how many people were given parole?

    (ii)  Out of those given parole, how many were convicted of a sexual offence, non-sexual offence, long term sentence, short term sentence?

    (iii)  A table that shows all prisons in Scotland in relation to question (ii)

  2. The Authority did not respond to the information request.
  3. On 3 August 2025, the Applicant wrote to the Authority requiring a review in respect of its failure to respond.
  4. The Authority responded to the requirement for review on 19 August 2025.  However, it incorrectly treated this as a new request rather than a requirement for review of its failure to respond to the Applicant’s original request of 28 June 2025.  It informed the Applicant that it did not hold the information requested in parts (i) to (iii) of the request and issued him with a notice, in terms of section 17(1) of FOISA, to that effect.  It advised the Applicant to submit a request to the Parole Board for Scotland as it may hold the information requested.
  5. On 25 September 2025, following intervening correspondence with the Authority, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  He stated that he was dissatisfied with the outcome of the Authority’s review (i.e. its response of 19 August 2025) because he did not agree that it did not hold the information requested in parts (i) to (iii) of his request.

Investigation

  1. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
  2. On 23 December 2025, the Authority was notified in writing that the Applicant had made a valid application.  The case was subsequently allocated to an investigating officer. 
  3. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions related to how it established that it did not hold the information requested.
  4. During the investigation, the Commissioner identified information within the Parole Board for Scotland’s Annual Report 2024/2025 which appeared to satisfy parts (i) and (ii) of the request.  However, the Annual Report did not provide a prison-level breakdown and therefore did not satisfy part (iii) of the request.  The Parole Board for Scotland is the body responsible for deciding whether prisoners can be safely released into the community and for setting licence conditions to manage risk.
  5. The Commissioner provided the Applicant with a copy of the relevant extracts from the Parole Board for Scotland’s Annual Report.  The Commissioner explained that these extracts appeared to satisfy parts (i) and (ii) of the request and invited the Applicant to submit a request to the Parole Board for Scotland for the information in part (iii) of his request.
  6. In light of the above, the Commissioner asked the Applicant if he still required a decision from the Commissioner on his present application.  The Applicant confirmed that he did.

Commissioner’s analysis and findings

  1. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

Section 17(1) of FOISA – Notice that information is not held

  1. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority which holds it is entitled to be given that information by the authority, subject to qualifications which, by virtue of section 1(6) of FOISA, allow Scottish public authorities to withhold information or charge a fee for it.  The qualifications contained in section 1(6) are not applicable in this case.
  2. The information to be given is that held by the authority at the time the request is received, as defined by section 1(4) of FOISA.  If no such information is held by the authority, section 17(1) of FOISA requires it to give the applicant notice in writing to that effect.
  3. The standard of proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities.  In determining where the balance of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
  4. The Commissioner also considers, where appropriate, any reason offered by the public authority to explain why it does not hold the information.  While it may be relevant as part of this exercise to explore expectations about what information the authority should hold, ultimately the Commissioner's role is to determine what relevant recorded information is (or was, at the time the request was received) actually held by the public authority.

The Applicant’s submissions

  1. The Applicant considered that the Authority held the information requested.  He argued that the Authority needed to hold the information given that prisoners are in the custody of the Authority and because the Scottish Government required the Authority to hold the information.
  2. The Applicant also submitted that the Authority had previously provided him with the same information for previous years in response to earlier information requests.  However, he said that he was under no obligation to provide the Authority with this information.

The Authority’s submissions

  1. The Authority explained that it identified the Parole Unit as the business area most likely to hold information relevant to the request, given it related to parole consideration and outcomes.  The Parole Unit was contacted and confirmed that it did not hold information in the form requested in parts (i) to (iii) of the request.
  2. Based on that advice and given the specialist nature of parole processes and data handling, the Authority concluded that it did not hold the information requested and that no further searches of other business areas or record systems were likely to identify the information.  It therefore issued the Applicant with a notice, in terms of section 17(1) of FOISA, that it did not hold the information requested.
  3. Following receipt of the Applicant’s requirement for review, and his subsequent correspondence referring to figures he said it had previously provided for the period March 2022 to March 2023, the Authority undertook further checks to identify any earlier information requests or disclosures that might correspond to parts (i) to (iii) of the request.  These checks included reviewing the Authority’s FOISA case records and logs.  However, it did not identify any previous requests or responses matching the description provided by the Applicant.
  4. During the investigation, the Authority again checked the position with the Parole Unit.  The Parole Unit again confirmed that the Authority did not hold, in any recorded or retrievable form, information capable of answering parts (i) to (iii) of the request.
  5. The Authority explained that it did not maintain datasets or reports showing the numbers of prisoners considered for, or granted, parole broken down by offence type, sentence type or prison.  Instead, information held by prisons is categorised by “review type rather than offence” and relevant systems do not contain complete or reliable data from which the information requested could be retrieved.
  6. The Authority submitted that any attempt to produce the information requested would require the creation of new information by reconciling incomplete or inconsistent sources, rather than the retrieval of information already held.  On that basis, it maintained that it did not hold the information requested in parts (i) to (iii) of the request and that it was entitled to issue the Applicant with a notice, in terms of section 17(1) of FOISA, to that effect.
  7. Returning to the information that the Applicant said it had provided him previously, the Authority noted that the Applicant referred to figures relating to parole consideration outcomes for the period March 2022 to March 2023.  Specifically, that 1,714 individuals were considered for parole and 198 were granted parole over that period.  It confirmed that, following further enquiries and searches, it had been unable to locate any previous FOISA request or response in which those figures were provided to the Applicant by the Authority.

The Commissioner's view

  1. The Commissioner has carefully considered all relevant submissions, the terms of the request and the information contained within the Parole Board for Scotland’s Annual Report 2024/2025.
  2. The Commissioner considers that the request seeks complete figures for 2024, including breakdowns by offence type, sentence type and individual prison.  In his view, it seeks statistical answers based on a complete dataset, rather than individual records containing information of possible relevance.
  3. The Commissioner accepts that the Authority may hold individual records containing elements of relevant information.  However, he is satisfied that to produce the complete dataset requested by the Applicant would require the Authority to reconcile incomplete or inconsistent sources and apply judgement as to which cases fell within the categories requested by the Applicant.  In his view, this would go beyond the compilation of information already held and, in any event, would not produce the complete dataset he considers the request seeks.
  4. Given the explanations and submissions provided, the Commissioner accepts that the Authority took adequate and proportionate steps in the circumstances to establish if the information was held and he is satisfied, on balance, that it does not (and did not, on receipt of the request) hold the information requested by the Applicant.
  5. The Commissioner considers that the steps taken by the Authority were reasonable in terms of those consulted in response to the request and the locations searched.  He finds that these steps would be capable of locating the information requested, if it was held.
  6. The Applicant is correct to note that he is not obliged to provide the Authority with the information he claimed it had disclosed to him in the past.  However, the Commissioner is satisfied that the Authority asked for this information in order to aid its own searches for the information requested and to establish whether it had previously been able to provide similar information to the Applicant.
  7. While the Applicant believed and expected the specified information to be held by the Authority, the Commissioner is satisfied, on balance, that this was not the case.  He has no locus, in this context, to determine what information an authority ought to record, or how: he is concerned with what information the authority actually holds.
  8. The Commissioner notes again the information published by the Parole Board for Scotland in its Annual Report 2024/25 and repeats his suggestion to the Applicant that he submit a request to the Parole Board for Scotland for the information in part (iii) of his request.
  9. In all of the circumstances, the Commissioner is satisfied, on balance, that the Authority does not (and did not, on receipt of the request) hold the information requested.  He therefore concludes that the Authority was correct to give the Applicant notice, in terms of section 17(1) of FOISA, that it did not hold the information requested.

Handling matters

  1. In the circumstances, the Commissioner must comment further on the Authority’s handling of the Applicant’s request. 
  2. Section 10(1) of FOISA gives Scottish public authorities a maximum of 20 working days following the date of receipt of the request to comply with a request for information.  This is subject to qualifications which are not relevant in this case.
  3. It is a matter of fact that the Authority did not provide a response to the Applicant’s request for information within 20 working days, so the Commissioner finds that it failed to comply with section 10(1) of FOISA. 
  4. The Applicant submitted a requirement for review on 3 August 2025 of the Authority’s failure to respond to his request.  However, as noted above, the Authority failed to recognise this as a valid requirement for review and instead wrongly treated it as a new request. 
  5. The Commissioner does not understand why the Authority did this. The requirement for review clearly referred to the original request and the Authority’s failure to provide a response to the request within the timescale allowed by section 10(1) of FOISA.
  6. As the Applicant wrote to the Authority requiring a review in respect of its failure to respond before the Authority issued a response to his request, the Authority’s response of 19 August 2025 was a review outcome in terms of section 21 of FOISA – despite the Authority framing it as its initial response to a new request made on 3 August 2025.  There was no opportunity for the Authority to invite a further requirement for review.
  7. The Commissioner would remind all public authorities that there is no provision under FOISA to provide a second review outcome, unless the Commissioner requires an authority to carry out a new review and issue a revised review outcome in a decision notice.

Decision 

The Commissioner finds that, in respect of the matters specified in the application, the Authority complied with Part 1 of the Freedom of Information (Scotland) Act 2002 in responding to the information request made by the Applicant.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

 

 

Cal Richardson

Deputy Head of Enforcement 


6 August 2026

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