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Scottish Government intervention - practice and performance

Scottish Government Intervention - Practice and Performance

The Commissioner is currently undertaking two interventions to improve FOI compliance within the Scottish Government. 

This intervention was launched in 2017 to support improvements in the Scottish Government's FOI practice and performance. 

A second intervention was launched in 2024 to support improvements in the Scottish Government's communications and records. Read more about the Communications and Records Intervention here. 

Background to the Practice and Performance Intervention

In November 2017 the Commissioner announced that he would be undertaking an intervention into the Scottish Government's FOI performance. The intervention aims to support improvement in the Scottish Government's performance in relation to FOI.

The Commissioner's 2017 letter to the Minister for Parliamentary Business provides further detail on the background to the intervention.

Implementation phase

This intervention remains in the implementation phase. The Scottish Government has implemented the agreed action plan (read more about this below) and is publishing progress updates and supporting information on its own website. Throughout the implementation period, the Government is required to provide the Commissioner with monthly statistics about compliance with the statutory timescales.

The Commissioner is monitoring the implementation and is publishing ongoing progress reports. The latest report, published in October 2023, is published below.

October 2023: Fourth Progress Report

On 12 October 2023, the Commissioner's fourth Progress Report from the intervention to improve the Scottish Government's FOI practice and performance was published.  The full report is available to download below. 

The Commissioner anticipated that this report would announce the successful conclusion of this intervention, but, unfortunately, the Scottish Government's improvement activity has not reached a point where this work can be appropriately concluded.

The 2023 Progress Report examines two periods of Scottish Government activity, between 1 July 2022 and 31 March 2023 (Phase 1) and from 1 May to 9 September 2023 (Phase 2).  As with previous reports, the 2023 Progress Report is informed by a combination of statistical analysis of FOI case-handling data and an in-depth assessment of the handling of individual cases. 

May 2022: Third Progress Report

On 17 May 2022 the Commissioner's third Progress Report from the intervention to improve the Scottish Government's FOI practice and performance was published. The full report is available to download below.

The report examines Scottish Government FOI practice in detail over a period of two years following the introduction of the Scottish Government Action Plan. It examines practice and progress between 1 April 2019 and 31 March 2021, informed by a combination of statistical analysis FOI case-handling data and an in-depth assessment of the handling of individual cases. 

Summary of findings

The May 2022 Progress Report finds that, while significant improvements have been made in a number of areas, further work is required if FOI performance is to be raised and sustained.

Improvements made include:

  • an increased understanding across the Scottish Government of FOI request-handling processes and procedures
  • the ending of the inappropriate practice of handling requests from journalists and political researchers differently from other requesters
  • a greater reliance on internal expertise in the handling of FOI requests.

Remaining issues include:

  • evidence of widespread failures to comply with records management requirements when handling FOI requests
  • issues with the organisation's ability to track, monitor and report on key elements of FOI performance
  • inconsistent compliance with new procedures designed to prevent delays in the approval of FOI responses.

The Report contains a number of recommendations to support the delivery of further improvements in FOI performance and practice. 

September 2020: Second Progress Report

On 10 September 2020 the Commissioner published his second Progress Report on the intervention to improve the Scottish Government's FOI practice and performance. The full report is available to download below.

The Progress Report considers the Scottish Government's actions and performance between 1 April 2019 and 31 May 2020.

Summary of findings
  • Between April 2019 and March 2020 the Scottish Government made significant progress towards delivering on its FOI improvement action plan.
  • This progress was achieved via a wide-ranging improvement programme implemented across the Scottish Government. It included:
    • the development and implementation of improved procedures
    • the introduction of an FOI 'triage' process
    • the training of more than 280 specialist case-handers
    • the introduction of new case-handling systems
    • the introduction of a range of training, resources, events and networking opportunities.
  • The above measures contributed towards a significant improvement in the Scottish Government's FOI performance during 2019/20. This included a sustained improvement in 'on-time' responses to FOI requests, and reductions in the number of FOI reviews and appeals.
  • However, during April and May 2020, the Scottish Government's FOI performance fell dramatically as it diverted resources in response to the Covid-19 pandemic. While some impact may be expected, the extent and speed of the decline raises significant concerns about the sustainability of the Scottish Government's FOI improvement work.
  • The Commissioner urges the Scottish Government to direct immediate attentions towards restoring its FOI function. He recommends directing focus towards the following areas initially:
    • Restore trained FOI staff to key FOI roles
    • Implement urgent improvements to ensure FOI record-keeping is robust, appropriate and effective
    • Ensure that appropriate training, development and support measures are in place for staff involved in the handling of requests
    • Restore resource within the FOI Unit to ensure that the emerging benefits from new triage, advice and training responsibilities are protected.
  • He also recommends that Ministers consider whether internal Key Performance Indicators can be introduced in relation to the time taken to respond to both routine and sensitive / exceptionally complex cases.
  • The Commissioner notes that failing to take action at this time will send a dangerous message to staff and the wider public about the perceived importance of openness, transparency and accountability through FOI, at a time when the public benefit from these characteristics has never been clearer.

July 2019: Initial Progress Report

On 29 July 2019, the Commissioner published a Progress Report (available to download below). He reported that the implementation of the action plan is ongoing and the full benefits will not be realised until completion of the associated programme of work. Following completion of the work programme, and a period of time for the changes to bed in, the Commissioner will carry out a further assessment to determine the extent to which his recommendations have been met and whether the work carried out has resulted in the anticipated improvements in practice.

November 2018: Action planning phase

The action planning phase of an intervention focuses on achieving a clear understanding of the outcomes that need to be delivered to meet the Commissioner's recommendations. There is often discussion between the Commissioner and the public authority before a final plan is agreed.

In this intervention, the Scottish Government provided its first draft action plan to the Commissioner on 13 September 2018. The Commissioner provided his comments on the draft on 9 October 2018. The Scottish Government provided a final draft to the Commissioner on 30 October 2018, and on 8 November 2018, the Commissioner agreed this version, with one amendment.

June 2018: Intervention Report - Assessment Phase

On 13 June 2018 the Commissioner published his report following the assessment phase of his intervention into the Scottish Government's FOI practice and performance. The full report is available to download below.

Summary of findings

The report details the findings of the Commissioner's extensive assessment. These include:

  • It is an important principle of FOI law that, in most cases, it should not matter who asks for information. The practice of referring requests for clearance by Ministers simply because they come from journalists, MSPs and researchers is inconsistent with that principle.
  • The Scottish Government's FOI policies and procedures are not clear enough about the role of special advisers in responding to FOI requests.
  • The Scottish Government takes longer to respond to journalists' FOI requests than other requests, but in only one case did the Commissioner find evidence that delay was deliberate.
  • The Scottish Government's FOI practice has improved significantly over the last year, following the Commissioner's first intervention: average response times to all requests, including journalists' requests have reduced.
  • The Commissioner makes seven recommendations for further specific improvements to: clearance procedures; quality assurance of FOI responses; training; case handling and case records management; monitoring FOI requests and review procedures.
Assessment

This assessment included:

  • Statistical analysis of data from 7,318 FOI requests received by the Scottish Government between December 2014 and December 2017
  • Inspection of 104 individual Scottish Government FOI case files
  • Examination of 87 appeals to the Commissioner about the Scottish Government's handling of FOI requests
  • Review of the Scottish Government's FOI guidance and procedures
  • Face-to-face interviews with 31 Scottish Government officials and four Cabinet Secretaries. The Commissioner requires the Scottish Government to develop an action plan (for his approval) by 13 September 2018.

The Commissioner will monitor and review the implementation of the action plan.

Background

In November 2017 the Commissioner confirmed that he would be undertaking a further intervention into the Scottish Government's FOI performance. The Commissioner's letter to the Minister for Parliamentary Business provides background to the intervention.

Invitation to journalists to provide further information

On 13 December 2017, the Commissioner issued the invitation below to the signatories of a letter sent by journalists in May 2017 to the Scottish Parliamentary Corporate Body. He invited them to provide further evidence to help him frame accurately the assessment phase of the intervention.

The invitation provides useful information about the scope of the intervention and a list of the questions the assessment phase would focus on.

Invitation to provide further evidence (PDF)