Decision Notice 124/2024: Independence Referendum Bill - Lord Advocate’s reference to Supreme Court
Authority: Scottish Ministers
Case Ref: 202201060
Summary
The Applicant asked the Authority for correspondence and documentation relating to the Lord Advocate’s reference
to the Supreme Court regarding the legislative competence of the Scottish Parliament to stage a future
independence referendum. The Authority stated that complying with the request would exceed the £600 cost limit,
so it was not obliged to comply. Following an investigation, the Commissioner accepted this.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) and (6) (General entitlement); 12(1) (Excessive
cost of compliance); 15 (Duty to provide advice and assistance); 47(1) and (2) (Application for decision by
Commissioner)
The Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 (the Fees Regulations)
regulations 3 (Projected costs) and 5 (Excessive cost – prescribed amount)
The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision. The
Appendix forms part of this decision.
Background
1. On 21 July 2022, the Applicant made a request for information to the Authority. The Applicant requested:
(i) Any correspondence, between 1 January 2022 and 28 June 2022, including meetings, notes, memos, agendas,
ministerial briefings and minutes, on the topic of the decision to request the Lord Advocate to consider making a
reference to the Supreme Court.
(ii) Any attachments to this internal correspondence.
2. The Applicant stated that this should include, but not be limited to, emails, letters, WhatsApp and Signal
messages, OneNote memos and texts between officials, special advisers, Ministers, Ministerial private offices and
civil servants.
3. The Authority responded on 16 August 2022, refusing the request in terms of section 12(1) of FOISA as it
considered the cost of complying would exceed the specified limit of £600. The Authority suggested to the
Applicant that he might wish to narrow the scope of his request to bring the cost of complying below £600 and
referred him to the Commissioner’s guidance on how to do so.
4. On 16 August 2022, the Applicant wrote to Authority requesting a review of its decision. The Applicant
stated that he was dissatisfied because he disagreed that it would cost more than £600 for the Authority to comply
with his request and because it had failed to provide him with a cost calculation (which he contended was because
it had not properly undertaken that work).
5. The Authority notified the Applicant of the outcome of its review on 13 September 2022, fully upholding
its original decision for the reasons previously stated. The Authority provided the Applicant with a cost
calculation, which estimated the cost of complying with his request as £706.50. The Authority also advised the
Applicant to narrow the scope of his request, either by time period or subject matter, to bring the cost of
complying below £600.
6. On 26 September 2022, the Applicant wrote to the Commissioner, applying for a decision in terms of section
47(1) of FOISA. The Applicant stated that he was dissatisfied with the outcome of the Authority’s review because
he believed it would not cost the Authority more than £600 to comply with his request.
Investigation
7. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the
power to carry out an investigation.
8. On 17 October 2022, and in line with section 49(3)(a) of FOISA, the Commissioner gave the Authority notice
in writing of the application and invited its comments.
9. The case was subsequently allocated to an investigating officer.
10. The investigating officer invited the Authority to answer specific questions. These related to the
searches it had carried out and to its justification for applying section 12(1) of FOISA.
Commissioner’s analysis and findings
11. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.
Section 12(1) – Excessive cost of compliance
12. Section 12(1) of FOISA provides that a Scottish public authority is not obliged to comply with a request
for information where the estimated cost of doing so would exceed the relevant amount prescribed in the Fees
Regulations. This amount is currently £600 (see regulation 5). Consequently, the Commissioner has no power to
require the disclosure of information should he find that the cost of responding to a request for that information
would exceed this sum.
13. The projected costs a Scottish public authority can take into account in relation to a request for
information are, according to regulation 3 of the Fees Regulations, the total costs (whether direct or indirect)
it reasonably estimates it will incur in locating, retrieving and providing the information requested, in
accordance with Part 1 of FOISA.
14. The authority may not charge for the cost of determining whether it:
(i) holds the information, or
(ii) should provide the information.
15. The maximum hourly rate the authority can charge for staff time is £15 per hour.
The Authority’s submissions
16. The estimated cost of compliance set out in the Authority’s review response was £706.50, which was based
on searches of Outlook and personal files by five of 13 key officials identified by the case handler and a further
search of the Authority’s electronic records management system (eRDM) by the case-handler. The full breakdown of
this estimate is provided in Appendix 2.
17. However, the Authority confirmed that it had failed to retain full details of the searches informing the
above cost calculation.
18. The Authority therefore considered the estimate cost of complying afresh, resulting in a new estimate of
£1,440. This was based on the results of searches of Outlook and personal folders by three of the 13 key
officials (who had been asked to undertake fresh searches). The full breakdown of this estimate is provided in Appendix 2.
19. The Authority explained that it had decided not to search its eRDM as, on reflection, it was satisfied
that the information held by the 13 key officials in their Outlook and personal files would include information
also held there.
20. The Commissioner asked the Authority to explain why it considered searches of the above officials’ Outlook
and personal files to be the best way of locating the information requested by the Applicant and why the
information was not held in a central file or location, given the importance of the subject matter.
21. The Authority explained that it interpreted the Applicant’s request for “correspondence” as encompassing
decision-making around asking the Lord Advocate to consider a reference to the Supreme Court and not solely to
correspondence relating to the final decision to do so.
22. The Authority considered that the Applicant’s request therefore included official-level correspondence
leading up to the decision, as well as communication with the Authority and the Lord Advocate.
23. The Authority explained that this information is held by a project group spanning a number of business
areas, including the Referendums Scotland Bill Team, the Scottish Government Legal Directorate (SGLD), the
Parliamentary Counsel Office and Legal Secretaries to the Lord Advocate.
24. Within this project group, the Authority identified 13 key officials it considered most likely to hold
information within the scope of the Applicant’s request as they had worked on initial scoping and decision-making
processes around the reference, preparation of the Independence Referendum Bill and the preparation of a statement
made by the First Minister on 28 June 2022.
25. The Authority explained that information was held by individual business areas, rather than in a central
file, and the breadth of business areas involved in the Lord Advocate’s reference made central collation of that
information impractical.
26. The Authority noted that there were a number of folders where the information was stored, but that the key
officials identified would hold a wider range of material within the scope of the request in their Outlook files,
including internal discussions not forming part of the official record, documentation not yet filed and drafts of
documents.
27. The Authority also explained that officials working on the reference routinely held copies of material
already filed in the relevant eRDM folder within Outlook for ease of reference and use and that searches of
Outlook would therefore identify material already held in official folders, as well as anything not considered to
be part of the official record or that had yet to be filed.
28. The Authority noted that the revised estimated cost of compliance of £1,440 did not include sift and
redaction time for the other ten key officials and or information potentially held by the named special advisors
and ministerial private officers in the Applicant’s request.
29. The Authority submitted that, based on the returns of three of the 13 officials, the Applicant’s request
already exceeded the upper cost limit under FOISA and that undertaking the further work set out in the above
paragraph would take it substantially further over the cost limit.
The Applicant’s submissions
30. The Applicant explained that he did not believe section 12(1) of FOISA should apply as he considered that
the cost of complying with his request had been inflated by the Authority.
31. The Applicant also expressed concern, following the Authority’s revised cost calculation, that the
estimated cost of compliance had more than doubled.
The Commissioner’s view
32. Having considered all of the relevant submissions and the terms of the Applicant’s request, the
Commissioner accepts that the Authority’s interpretation of the scope of the request was reasonable.
33. The Commissioner acknowledges that the Applicant believes the Authority should be capable of providing the
information he requested without exceeding the £600 cost limit under FOISA.
34. However, the Commissioner is required to consider whether section 12(1) of FOISA applies in this case,
with regard to the recording systems in use by the Authority, and not with regard to what an Applicant might wish
these systems to be capable of.
35. The Commissioner accepts from the submissions that, despite the significance of the subject matter sought,
a single central file does not exist. As such, the Commissioner is satisfied that the Authority took adequate and
proportionate steps in the circumstances to establish the information falling within the scope of the Applicant’s
request.
36. Considering the nature of the way the information is held, the volume of information identified as falling
within scope, the information likely to be yielded from searches by the other ten officials and the time likely to
be required for the actual process of redaction, the Commissioner is satisfied that the cost of complying with the
Applicant’s request would exceed the £600 limit under FOISA.
37. In all of the circumstances, therefore, the Commissioner finds that the Authority was correct to refuse
the request under section 12(1) of FOISA.
Handling of request
Section 15 – Duty to provide advice and assistance
38. Section 15 of FOISA requires a public authority to provide reasonable advice and assistance to someone
making an information request. Where the cost of complying with a request is likely to exceed the £600 limit, the
public authority should consider what information could be disclosed free of charge or within the cost limit, in
order to comply with the duty to provide advice and assistance.
39. The Commissioner considers that where section 12(1) of FOISA is engaged, the duty to provide advice and
assistance is particularly important in order to enable a requester (who will not necessarily understand how
information is held or organised) to effectively narrow the scope of their request.
40. In this case, the Authority’s approach was to ensure its searches were as comprehensive as possible while
providing the Applicant with fairly generic advice and assistance. Ultimately, however, this resulted in no
information being disclosed to the Applicant.
41. Should similar situations arise in the future, the Commissioner would urge the Authority to fully engage
with requesters, in line with its duty under section 15 of FOISA, to enable requesters to understand how
information is held and how they might narrow the scope of their requests to either obtain all of the information
they are seeking or at least some of it.
42. However, the Commissioner notes that, during the course of his investigation, the Authority provided
further advice and assistance to the Applicant to enable him to make a narrower request.
Loss of search returns
43. The Commissioner is also concerned that the Authority failed to retain full records of its original
searches.
44. While the Authority has apologised for this and explained it was as a result of resourcing pressures, it
is critical, as the Commissioner’s guidance makes clear, that such records are retained.
45. In the Commissioner’s view, retaining this information is particularly important when public authorities
refuse to comply with a request on the basis of excessive cost of compliance under section 12(1) of FOISA.
46. This is because a frequent source of dissatisfaction with such refusals is that the requester does not
accept that it would cost more than £600 to comply with their request. In such cases, it is obviously problematic
if, in the event the requester subsequently appeals to the Commissioner, the public authority has failed to retain
full details of the searches it carried out to inform the cost calculations being disputed.
Accurate costings at review stage
47. On a related note, the Commissioner notes the significant difference between the estimated cost of
compliance provided by the Authority at review stage and during his investigation.
48. While the Commissioner can accept some margin of difference between cost calculations, requesters are
entitled to a robust costing at review stage. In this case, this clearly did not happen.
49. The Commissioner would therefore also like to urge the Authority to ensure that when refusing to comply
with requests under section 12(1) of FOISA that, in line with paragraph 9.4.2 of its Code of Practice on the
Discharge of Functions by Scottish Public Authorities , it provides requesters with an estimate (which should be
robust) of how the cost of complying with their request would exceed the cost limit.
50. The Commissioner also notes that the Authority provided erroneous calculations in its review response: it
referred to 240 minutes for searches, 750 minutes to sift the information located and 1,010 minutes to redact that
information. This amounts to a total of 2,000 minutes (33.3 hours) which, multiplied by £15 per hour, leaves a
total estimate of around £500.
51. However, the Commissioner is satisfied, based on submissions provided by the Authority, that this was a
typographical error.
52. The Commissioner accepts that the Authority intended to refer to 240 minutes for searches, 1,101 minutes
to sift the information located and 1,485 minutes to redact that information. This amounts to a total of 2,826
minutes (47.1 hours), which, multiplied by £15 per hour, leaves a total estimate of £706.50 (the same total
estimate provided by the Authority in its review response).
53. The Commissioner would therefore also like to urge the Authority to ensure that it takes greater care when
providing calculations to ensure that they are accurate and free of errors (typographical or otherwise).
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 (FOISA) 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.
David Hamilton
Scottish Information Commissioner
18 June 2024
Appendix 1: Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1 General entitlement
(1) A person who requests information from a Scottish public authority which holds it is entitled to be given
it by the authority.
(2) The person who makes such a request is in this Part and in Parts 2 and 7 referred to as the “applicant.”
…
(6) This section is subject to sections 2, 9, 12 and 14.
…
12 Excessive cost of compliance
(1) Section 1(1) does not oblige a Scottish public authority to comply with a request for information if the
authority estimates that the cost of complying with the request would exceed such amount as may be prescribed in
regulations made by the Scottish Ministers; and different amounts may be so prescribed in relation to different
cases.
…
15 Duty to provide advice and assistance
(1) A Scottish public authority must, so far as it is reasonable to expect it to do so, provide advice and
assistance to a person who proposes to make, or has made, a request for information to it.
…
47 Application for decision by Commissioner
(1) A person who is dissatisfied with -
(a) a notice under section 21(5) or (9); or
(b) the failure of a Scottish public authority to which a requirement for review was made to give such a
notice.
may make application to the Commissioner for a decision whether, in any respect specified in that application, the
request for information to which the requirement relates has been dealt with in accordance with Part 1 of this
Act.
(2) An application under subsection (1) must -
(a) be in writing or in another form which, by reason of its having some permanency, is capable of being used
for subsequent reference (as, for example, a recording made on audio or video tape);
(b) state the name of the applicant and an address for correspondence; and
(c) specify –
(i) the request for information to which the requirement for review relates;
(ii) the matter which was specified under sub-paragraph (ii) of section 20(3)(c);
and
(iii) the matter which gives rise to the dissatisfaction mentioned in subsection (1).
Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004
3 Projected costs
(1) In these Regulations, "projected costs" in relation to a request for information means the total costs,
whether direct or indirect, which a Scottish public authority reasonably estimates in accordance with this
regulation that it is likely to incur in locating, retrieving and providing such information in accordance with
the Act.
(2) In estimating projected costs-
(a) no account shall be taken of costs incurred in determining-
(i) whether the authority holds the information specified in the request; or
(ii) whether the person seeking the information is entitled to receive the requested information or, if not so
entitled, should nevertheless be provided with it or should be refused it; and
(b) any estimate of the cost of staff time in locating, retrieving or providing the information shall not
exceed £15 per hour per member of staff.
5 Excessive cost - prescribed amount
The amount prescribed for the purposes of section 12(1) of the Act (excessive cost of compliance) is £600.
Appendix 2: Summary of Authority’s original and revised cost calculation
Summary of the Authority’s cost calculation: Original Estimates, Revised Estimates
eRDM search by case-handler: 180 minutes, [Discounted].
Officials searching Outlook/personal files: 5, 3.
Actual Outlook/personal files Search Time per official: 12 minutes, 10 minutes.
Total Search Time (a): Actual 240 minutes (180 eRDM + 60 mins outlook (5 officials x 12 minutes), Forecast 130
minutes (10 mins x 13 officials, including case-handler)
Documents returned potentially in scope: 367 (from 3 teams), 1115 (from 3 officials)
Time taken to sift a sample of 30 documents: 90 mins (3 mins per doc), 30 mins (1 min per doc)
Number of sifted documents actually out of scope, 3 of 30 out of scope (10%), 3 of 30 out of scope (10%).
Total documents to be considered: 367 – 10% = 330, 1115 – 10% = 1004.
Documents requiring redaction: estimated 10% do not require redaction which is 33 so
330-33 = 297 documents requiring redaction, estimated 10% do not require redaction which is 100 so 1004-100 = 904
documents requiring redaction.
Time taken to redact sample of 5 documents: 25 minutes @ average of 5 minutes per document, 25 minutes @ average
of 5 minutes per document.
Time forecast for redactions (c), 297 x 5 minutes = 1485 minutes, 904 x 5 minutes = 4,520 minutes.
Total resource time (a+b+c): 240 minutes + 1101 minutes +1485 minutes = 47 hours and 6 minutes, 130 minutes + 1115
minutes +4520 minutes =approximately 96 hours.
Total cost @ £15 per hour: 47.1 hours x £15 = £706.50, 96.
