Freedom of Information request sent by Scotsman journalist: FOI release

Information requested

1. The number of Freedom of Information requests sent to the Scottish Government by Scotsman journalist Martyn McLaughlin in the period 1 June 2020 to 31 May 2021.

2. Please give a rough breakdown of requests by subject matter.

3. Please give a breakdown of how many were appealed and reviewed internally and externally, with a breakdown of the verdicts of the appeals.

Response

1. Mr McLaughlin submitted two Freedom of Information requests to the Scottish Government in the period June 2020 to 31 May 2021.

2. Both requests asked for information on the COP26 UN climate change summit.

3. Mr McLaughlin asked for a review for both requests, one of which is still underway and the other upheld the original decision. Appeals to the Scottish Information Commissioner may only be made after an internal review has been carried out. One review is still in progress and the other has not, to our knowledge, gone to appeal although he has 6 months from receiving his review response to lodge one.

We are releasing the information you have requested as Mr McLaughlin has given his permission to release it publicly. If he had not, then an exemption under section 38(1)(b) (personal information) of FOISA would apply to that information.

Information is exempt in terms of section 38(1)(b) if (i) it is personal data and (ii) either the first, second or third condition is satisfied (see section 38(2A) to (3A) of FOISA):

(i) Personal data is information that relates to an identified or identifiable individual. The request is clearly for information that directly relates to Mr McLaughlin and his FOI activities. It cannot be anonymised as it is about the FOI requests specifically submitted by him.

(ii) The first condition is that disclosure would contravene any of the data protection principles set out in Article 5 of the UK GDPR. The first principle is that the data must be processed fairly and lawfully and the Scottish Information Commissioner’s guidance is that ‘legitimate interest’ is likely to be the only lawful basis for disclosing personal data under FOISA.

In the context of responding to an FOI request, the legitimate interest test involves balancing the legitimate interests of the requester against the legitimate interests and expectations of the data subject.

We consider there may be a legitimate public interest in the public understanding the volume of requests being made by certain individuals, or categories of requesters, such as journalists, given the potential impact on public authorities. However, while we do not consider this information, which relates to requests Mr McLaughlin made in his professional capacity, to be particularly sensitive, we do consider that interest may be satisfied in relation to journalists, by the disclosure of information relating to media organisations, rather than individual journalists.

In addition, we recognise there is a competing public interest in ensuring that we do not act in ways that discourage people from making use of FOISA. We believe there is a real possibility that individuals may be less likely to make FOI requests if they believe their personal information will be disclosed. However, as Mr McLaughlin is content for us to disclose this information to you, we have concluded that the legitimate interests of the requester outweigh the legitimate interests and expectations of the data subject on this occasion. Accordingly, we have concluded that processing Mr McLaughlin’s personal information by disclosing it under FOISA can be achieved lawfully and fairly. As a result, disclosure would not contravene the data protection principles and so the exemption in section 38(1)(b) of FOISA does not apply on this occasion.

About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.