 You've been so good morning, and welcome everyone to this, the fourth meeting of the standard procedure and public appointments committee in 2024. There are no apologies this morning. And agenda item 1 is for the committee to decide on taking items later in the agenda in private. 7. Mae'r fawr o'r bydd iddyn nhw яwser i dillaw na'n gwrth trof sydd yn gwneud. Efallai'r fawr o'r fawr i dillaw yn dillaw i dillaw a gwneud i dillaw o'r bydd yn gwneud, sydd yn gwneud gan sefyndio siaradau fawr i dillaw. Efallai'r fawr i dillaw i dillaw ei dillaw Gwenyb criminalau o'r dod. Efallai'r fawr o'r bydd yn gwneud i dillaw, dillaw. Tym ni'n cael ei dillaw o'r fawr o'r bydd yn gwneud, Y dyfodol yna'r dyfodol sydd wedi bod y Cymru sydd yn ystod hawddai'r gwerthfawr, a dweud i'n ddraeth David Hamilton, a David ydyn ni i'n ddweud i'r ddweud i'w un Macauwch i'r Clare Stephen. Felly, rwy'n fwy gydag i chi i chi'n ddweud i chi i chi i chi'n gweithio David. Mae yna'r ddweud i chi'n ddweud i chi'n ddweud i chi i chi i chi i chi i chi i chi i chi'i gweithio. Rwy'n ardal, oherwydd, mae'n cael ei gŷnol ar gyfer y cerddur â'r annul, ac rydyn ni'n gŷn i'r tyfnol ar gyfer y cyffredinol cymiannol? Rydyn ni'n ardal, yn ffordd, ac rydyn ni'n gŷn y cyffredinol ar gyfer ar gyfer yr ond, ac yn ddaw i'r cymiannol. Yn y cyffredinol, mae'r 16th ymgol, dros arweinydd amser mewn i ddechrau aethau, mae'r bl 맛 serfynol yn endured yn gweithio ai'r rhaid i'r brêl ddaeth gwrthodol, sy'n meddwl i'r gweithio llunio gyrweithiau i'w gweithio i ddiogeliadau unrhyw. Mae'n edrych yn rhaid i ddesgwyntio'r lluniau yn gweithio'r pryd. Rwy'n credu ni'n credu beth sy'n gallu gwaith i gyflinweddau, mae rhai wneud chi'n ddaeth gwrthodol i'r ddratgwyd i unrhyw o gwrthodol, a'r rhan fydd yn ddiweddar o ddarladigau, was expecting to get in my first year I think I've had in 15 weeks so it's been fairly fast pace. I am genuinely honoured and proud to take on leadership of this organisation and to take on the role of Scottish Information Commissioner. I have got a fantastic staff, two of whom are with us here, in fact three with my colleague at the back. I'm really impressed by the dedication and the commitment that the staff in St Andrew's have to getting to the purpose of free of information, giving that access to all. Again, I do need to first of all pay recognition to the giants who have gone before me and whose shoulders I stand. Kevin Dunion, Rosemary Agnew and of course Dan FitzHenry, my most immediate predecessor, they've left me an organisation and indeed a regime which is in a good position. Despite a lot of the narrative that we will know to explore a bit more today, I take a lot of comfort from the fact that free of information is working well in Scotland. There are a number of high profile incidents, which of course we are addressing, but as a whole it works well. I took office, as I say, back in October. It was just after the annual report and the accounts were laid by my predecessor, Dan FitzHenry, so it's not my report, however, I recognise and agree with everything within the contents of the report, so I will certainly do my best and if the team, if there's any particular questions in that, we will be able to cover those. I think that it's probably worthwhile saying, though, that since then, as well as the issues that I've talked about, there have been a number of other developments, which again I'm perhaps more qualified in terms of speaking about. First of all, of course, is my requirement to lay a strategic plan to the Parliament. That happens every four years, and again it's fallen upon me to set my next four years of work with a relatively little amount of experience. So my approach to that has been to do my best in setting out a plan, but I'll revisit that next year and make sure that it's appropriate and just. What I think is important, though, is just to set out some of the tactical priorities that I've recognised already, and I'm going to cover those in further remarks. Workload stabilisation is a key one, and that's essentially dealing with the backlog, which unfortunately we have within the office. Also about building interventions and the capacity for that, which I consider to be one of the jewels of the crown of the toolbox I have. And also supporting and promoting legislative change, which again is a fairly good and hot topic just now. First of all, the backlog is unfortunate that we have a backlog. It's something that has built up. Like within many organisations, it's partly down to Covid, it's partly down to the legacy of that, but we are now in a position where we are dealing with that. Fundamentally, we couldn't keep up with demand that was coming in, and the resourcing is now, we've now put in measures in place whereby we've now stopped the bleed in terms of we've got control of that. But what we're also now doing is dealing with that backlog in a managed and slightly different way, which I think has been generally well received across the organisation. What ultimately that does is it preserves the system for everyone, because my concern was that if someone was to put an appeal into my office today without any action, they could be waiting 18 months, two years before it was even considered, and that's not an acceptable position to be in. What we've now done is we've made it a straight through process, and we're seeing that all the cases that came from the beginning of January are now progressing straight through to allocation and investigation, and that's just dealing with the current cases. We do, of course, need to deal with the backlog, and we are working with that. We've got additional resources that have now been confirmed by the corporate body to help us with that, and we're biting our way through that, and we will get through that chunk as well. It's a different approach we're taking. We're trying to do slightly different approaches in terms of pairing up cases and matching issues, but it's been a, so far, looks promising in terms of us getting there, and essentially what we're doing is preserving the system for the current system and dealing with what we have to deal with from the past. I mentioned the interventions. Of course, there are two major interventions just now. One is the Scottish—well, both are Scottish Government—one of the Scottish Government interventions is to do with a long-running one. That, we hope to bring to a conclusion next year, at the beginning of next year. We're at a good position with that now. It's sometimes been described as a game of two halves, and it's probably more a game of four quarters. It was bad, it got good, Covid happened, it got bad, it's getting good again, and what we're now seeing is exceptional performance, but that needs to be sustained, and that's what we're checking just now, is sustainability of that general performance. The second intervention is unrelated and has to do with informal communications, which, again, is—we'll put no doubt touching that more, but that's something that's a live intervention just now. I'm hoping not to have to go into too much just now, because first of all, we're still at the evidence-gathering stage and pulling in the information. Once we see that, we'll have a better consideration, and maybe for a future session we'll be able to delve into that more on things. Finally, on the legislative aspect, it was disappointing that the Scottish Government decided not to choose to go down a primary legislation route. There is some legislation that requires to be looked at from our perspective, and we do, however, welcome the fact that at least the section 1661 codes of practice are going to be reviewed, and already we are engaging with both the Keeper of the Records and, indeed, Scottish Government with how we can improve that. The other bill, of course, is the private members' bill, the KT Clarks bill. We wait to see where that's going. There are some interesting ideas and concepts that have been floated through that consultation. Again, we wait and see what the final detail will be. One of the things that we are keen to see is a more agile way of expanding our accessibility or coverage of free of information to a number of organisations, not by a gateway clause, because we do, having considered that carefully, think that that could cause more problems than we were looking for, but in a more structured timetable way, that could be involving Parliament in terms of designation, not just Scottish Government. That is my opening remarks. I'm very happy to take any questions. Thank you very much, David. Just before I leap in, I just want to put on record my and the committee's thanks to your predecessor, Darren FitzSenri, who was the principal author of the annual report. I think it's interesting that, in his opening, he too commented, quote, it has been a privilege as well as a pleasure to be at the helm over the past six years, and particularly to work with such an excellent team. The team has obviously got their commissioners very well trained, but I think it does, in reality, reflect your role, which is one as the head of a team that does it. I'd like to thank Darren both for the help and assistance that he gave to this committee, his openness towards us, but also, more importantly, his role as Scottish Commissioner over the previous period. David, you've set out your reflections on, I was going to say, the first few months, but I think the first few weeks of your role very clearly. We will obviously explore what your view is of where freedom of information is in Scotland, but based on a platform that is in a good place, and we're looking to seek improvement. You mentioned your strategic plan, which is a four-year plan, which obviously is due to be laid this year, but you made mention of revisiting that next year. Would your intention be to extend it, therefore, beyond 28 to 29, or, in essence, look at a three-year plan once you have a better understanding and indeed have the opportunity to put an input to what your priorities are? If I could, I would, but unfortunately I'm constrained by the four-year cycle. What I've got in the strategic plan is something that would stand the test of time anyway, but I do think that it would be wise to be able to reflect after a bit more time in the job. Also, once we see a bit more certainty regarding other aspects, for example, the extension of FOI to other agencies, so I think it was one of those difficult calls. The temptation was just to tinker with what was there from last time, but the reality is, as soon as you start picking it, you've got to deal with some of the issues. It's more than a refresh, it's something that I'm proud of and I think stands the test of time on its own merits, but I would like to have a clearer certainty as to where the legislative picture is going to be next year, and I think that we should be in that position. Rather than a new strategic plan, it will be more a one-year analysis of where we are, but also a three-year looking forward analysis of where you would like to get in it. Absolutely, and I think that the particular challenges of the first year will be different to the ones of year two onwards. That's very helpful, thank you. I'm going to throw you to the mercy of the committee now. Ivan, what would you like to say? I'd just like to explore a wee bit round about the backlog and the caseload numbers. I think that you're indicating that you've seen the number of new cases reducing, and it would just take your sense of why you think that is, and do you anticipate that continuing to be the case? Yes, thanks. Our demand has been fairly steady over the last four years. It's been up and down. Where the difficulty has been is matching that demand to resourcing. The throughput of work has increased. The staff have responded well to the challenges, but despite all the different system changes that have been made by my predecessors, fundamentally it came down to there wasn't enough people to deal with the accumulating demand. What we've now got is in a position where we've got a much leaner operating model for workforce planning that is making sure that we don't have any gaps in recruitment that were much tidier and cleaner on those things so that we don't let that gap run away again. We're in a good position now with that. Since I've started, I've now got five new members of staff who weren't there when I did start. That's not a sustainable increase of staff every three weeks. It's probably not bad but not sustainable. It's made a big impact of morale to the staff in the office because they see that we're actually working to fix this. The other thing that's important to recognise is that the complexities of some of the cases have been a surprise to me. I've got that new boy perspective that I can come in and say, wow, I would have thought that that would be an easy decision to make and then you begin to read the arguments and the complexities of it. Some of the issues have been very technical. You'll be aware of the Lochaber cases, which are significant amount of public money used to support a very vulnerable part of the country geographically and the complexities and indeed the responsibilities of decision making that we make there rest heavily, to be honest, when we're making these calls. It's something that we need to get right and it's something that we need to have a mind for, not just in terms of legal challenge, but what's the right thing to do for people of Scotland and for communities. I was going to ask for that complexity. Clearly, those bump into the cost restriction at some point. I suppose that puts a limit on how complex the cases can be until they breach that limit. It does. One thing that I would say is that the cost limit hasn't changed in the 20 years of legislation and that seems a bit of an anomaly to me. The £600 threshold that, if we were to index link that, I suspect we'd probably need our 2,000 or so. I don't know if my colleagues have an exact number on that one but it's certainly several, way, way above what it should be. That brings into a question mark as to whether that needs to get changed but, again, that's a primary legislation question. Is there any—I mean, just talking about that, sorry. If I may, very often, the more complex cases, the more legally complex cases, the cases involving complex arguments in relation to exemptions, don't engage the cost limit exemption because things like thinking time in relation to applying exemptions aren't matters that you can take into account in costing a request. Sorry, so what you're saying is that the cost number doesn't include all the cost? Do you just repeat—Basically, yes, yes, yes. You can't take account of the time required to think about whether a particular exemption applies—Right, okay. Okay, that's actually included from the cost coverage. So legally complex matters will not necessarily engage the cost. Okay, okay, I understand. You mentioned redefining the process. I think there's a different triage process, etc. So that is good to hear all of that. Clearly, perhaps more work on proactive for a lease of information or a standardised form might help that. I'm assuming that's something on your agenda. You can confirm that and then to what extent are you looking at new technology, AI and so on and so forth to help speed up the process to some extent? I think that the AI is a really interesting perspective just now. I prefer to call it assisted technology than AI because I think that the AI badge just stays at the wrong place. One of the things that we are doing is engaging with other regulators across the UK to see how AI is impacting. We already know that there are artificial intelligence packages that are doing free of information requests, so in order to respond to that, yes, I know, really the authorities need to have an equality of arms, which means AI packages to answer the requests. Although the other approach to that could be a much more open publication and self-service aspect. I think that's the kind of model that I tend to favour because otherwise you get into a kind of arms race, which doesn't really get you anywhere. It's just who's got the fastest computer. I think that where most benefits can be achieved are in changing that culture of publishing by design. Again, this is where the whole publication scheme aspect really needs to come in. It's interesting to see a culture, and I suspect Stephen's going to jump on that, so I'll leave it to him to jump on that. My final question, just to throw that out there, is there any calculation or sense of the scope of how much the whole FY process costs right across the public sector in terms of pulling information together? There's not, and I guess the question is how do you measure it? It'll mean different things to different people, different costs. Again, I would encourage public authorities to start looking at that in terms of how we can cut down our FOI response costs. We don't have people asking for FOIs because they can self-serve. If you can go to a website and get all the information that you require, that seems to be intrinsically a much more sensible approach than having to ask somebody to give something that's in the cover. How much impact do you think that could have? Could it have a significant impact on the case load that you see? I think that it could be significant. Last year we had 84,000 free of information requests across the country that we know of, but that's such a significant amount of data processing that's going on there. If people can do that themselves, and I think that the SEPA is quite a good example of that, where a lot of consultants are using FOI to get information out, and I think that the approach that SEPA is taking as we reconstruct the IT infrastructure is looking at can we get to encourage the consultants to self-serve because they're actually quite good at that, they understand the data sets and so on, and they're actually putting things together. When you look at tools such as Power BI and so on, there's lots of new things that people can actually start using in a more imaginative way. Again, I think that this is where we need to go into the next stage of publication and away from the current publication schemes, which are well out of date. I want to applaud what you've just said about transparency, because that's effectively what you've been talking about. In your initial reflections to the committee this morning, you talked about how you felt that FOI was in a reasonably good place in Scotland, but that's not the same thing as saying that the culture that surrounds transparency and accountability is in a good place. So, 16 weeks in, here's a difficult question, but I actually don't think that you'll ever be in a better place to answer this because you're brand new. What is your assessment of the overall public sector culture in respect to transparency, accountability and accessibility? First of all, I would say that the information teams on the ground are hugely committed to that, and that's from across the public authorities. They're very keen to do things. I think that the challenge comes when you get further up the tree. When you get to the top of the organisations, there's resistance. That's when I'm pointing you. There's a piece of work to be done there in terms of valuing that work and why it's important. The public attitude surveys are quite clear in saying that people have trust. I think that 75 per cent more trust if you have a good freedom of information regime in an organisation. This goes back to the fundamentals of open governance, and I don't just mean government, I mean across the public authorities. If we can encourage people to appreciate the fact that, if you're open with your data, people will trust you. What are the obstacles? What is it in the senior echelons of public sector organisations is seen as a barrier? What's the downside? Will you describe it in terms of... I think there's a reputational aspect of the concern about reputation. I think there's also a lack of investment in some of these teams because I've heard one comment from a health board that was essentially saying, trying to save lives here, why do they need to be answered freedom of information requests? I think that you just need to look at what's going on in terms of hospitals inquiries, et cetera, to understand why that doesn't add up. That is an attitude that prevails by some at senior levels. What we have also seen is that the right senior people making the right decisions can turn round organisations massively. The Scottish Government is a good example of that where the new permanent secretary has absolutely grasped FOI by it with both hands and now we are seeing the merits of that and the fruits of that labour. It's now embedded in the culture and the management culture. You're targeting the people at the top. That's where my laser sights are moving to. Yeah, yeah, yeah, good, good, crosshairs. Absolutely. I want to go and get into the authorities and speak to have those high-level conversations and this is why it matters. These are the benefits for you and you've also got to do it. Have you got all the powers you need? Has Parliament granted you everything you need to be able to create that leverage? Have you got the leverage? I think that there's perhaps some tweaking needed there. I think that we've seen some pretty bad comments publicly regarding people, which I've described as subverting the principles of FOI. I think that that needs to be dealt with. That seems bizarre, that that is not, that's an acceptable legally. Had there been a feed of information request in the may yet be when I don't know yet, that was live regarding to that, then it becomes an offence, but if it's not, then it isn't. So there is a gap there in my thinking that we need a bit more teeth regarding that kind of cultural pieces to, if you try to evade FOI, I think you've got to do that, then there should be some kind of penalty. If Saint George a bigger spear to take on the dragon. Certainly there is and has been for some time provision in section 60 code for senior management responsibility for FOI in every organisation. Yes, and to agree on culture as well, and certainly we have pursued interventions and, at least in one case, a purchase recommendation on the basis of issues relating to senior management, taking responsibility for FOI within the organisation. It could well be that some of the people that are long-term servers and some of these organisations at the top are just not suited in leadership terms for the more transparent, accountable culture that we would all like to see across government. They may, they may not be. I think he's got to be on an individual basis, but what I have seen is some excellent leadership and some less excellent leadership. Thank you, Stephen. Evelyn, can I turn to you? Yes, thank you, convener. Good morning, panel, and I would like to follow up on some of Ivan's points just to kick off. David, you spoke about the backlog. What does the backlog look like? At the present time, what is your longest case that is sitting in that backlog? Can you also tell us, the committee, how you are interacting with people that are sitting in the backlog? How are you updating them on progress? Yes, so what we've called this, this is called Project Blue for no reason. I was actually FOI'd in that as to whether there's a reason for the colour. So I suppose that system working well. It was just a random colour. We currently have 329 cases in our backlog, including those that we're still validating as to whether they're live cases. Unfortunately, we had a bit of a perfect storm last November when we ended up with a significant surgeon in cases that came in. We were up to over 70 that month and also with some staffing challenges just within the office which slowed that up. But we're back on top of that again. Our oldest case currently is 14 June 2022. That is, I think, we all would agree, absolutely unacceptable, but it's a matter of fact that we just have to deal with and it's something that we are dealing with. In terms of the engagement, first of all, we've explained very clearly to all the stakeholders as to how we're dealing with this and the rationale for it. By and large, most people are entirely accepting of that and they see the benefit of it. It's about protecting the whole system, not just the few. We've also been briefing the public authorities on aspects of this and trying to make it clear how we are trying to move through this, asking them to review actively the cases, because, as cases get older, often the rationale and the reasons for not releasing the data changes. We've asked them to do that. We've also asked the applicants should they do the wish to review that? Do they still need the data? Is it still relevant? Because the story may have moved on and may have been something different. I think that we've had varying degrees of success with that in all truth. A lot of people who, particularly from the applicants, want their decision and they want it to be fairly academic in terms of a principle, but it's their right to have that decision and if that's what they want then we will go through the process of doing so. I suppose that the biggest challenge is making sure that we've just got to keep the two going. We're going to continue reporting everything as currently is as a whole, but what we do now have is some subcontext to be able to say, well, the new cases coming through as of 1 January are going straight through and getting dealt with and that we're dealing with this backlog separately as a contained, definable project and we're working our way through that and trying to pair up, trying to look at themes that are here and we're also looking at trying to find particularly specialist resources, who are good on particular aspects of it to try and deal with it, not necessarily chronologically as we would do, but in terms of the best approach for the whole system. Some people are not happy about it and I entirely understand that, but I think that the majority are thinking that this does make sense, it is the right way to do it and I think that we just need to carry on with that. David, if someone is sitting in that backlog, what sort of update are you giving them on their specific case, because if people have been, there's 329 cases and the oldest one is June 2022, are you giving them a full picture of where you are? What exact information are you giving them? What we've told them so far is it's not a case of your number 15 in the queue, it's more a case of here's the approach that we're taking and we've also, for those with multiple applications for example, we're saying what are your priorities, we're trying to empower them to say what is it, you know, before we look at this one you might be one that is further up the list, so you tell us what your priorities are, so we're trying to empower some of the applicants in this as well to make sure that they can, they've got a say in it, we are having, we do have regular contact with people anyway to give them an update on their cases, it's an important part of that service delivery that we tell them and we record all those and make sure that we do everything we can to keep them in the loop. And do you give them a timescale for when you think that the complaint is going to be, or the issue is going to be dealt with? Maybe I'll ask June who's the head of enforcement, at present no, as we get through and get a better picture of the backlog and those cases that are more ready for resolution promptly we should be in a better position to do that. There are undoubtedly cases that will be more straightforward to address than others and that's part of the sort of triage process that we're going through initially with the backlog and we should after that be in a better position to have a good idea of how long the remainder is going to take. We also publish on our website on a monthly basis the status of every case, live case that we have open with us in addition to the regular contact that our investigators make with each applicant. It's understandable that applicants who have been waiting some time will want to hold out for a decision, absolutely. And that's coupled with, I think, it's fair to say that we get a fair number of applicants who are quite entrenched by the time they come to us anyway and that's probably due to a number of factors, but there will be a good number of cases where the FOI request is tied up with other issues that the applicant has had with the authority and in some way or other the relationship has broken down over time. I was just going to ask, your oldest case is June 22, is that an outlier? What's your second oldest case? It is a bit of an outlier. I think the second oldest is a couple of months newer than that. I think what would ease some of the frustrations. We see backlogs in other areas of our work is that if you can give a good response and an update on a regular basis, that will ease frustrations I think for people who are in that backlog and a sort of reflection of what you're actually doing rather than working on it or? I agree entirely with that and I think this is where the customer services pieces is so important in terms of giving that reassurance to people that they're not being forgotten. This is one of the risks which we identified. We don't want this to be looked like, we're just ignoring it, sweeping it under the carpet. As far as I'm concerned, there's a massive big bump in the carpet and it needs to go and we will finish that job before we can close that off so it needs to happen. I guess the challenge is that we're still at that assessment stage. There's not a quick way of scanning through things and saying that's easy and that's not. It does actually need a bit of investigation just to find out what the low hanging fruit is, what the easy quick wins are and that's for the process where I'm just now trying to sort of triage those and get them worked out what we can do. I think the next stage for that is, as you rightly say, is can we give people an expectation as to when this is going to land and that's something which I think we should be able to do. Once we get a grip of that, the numbers, because it is a significant number to have as a qualitative exercise, just trying to work out where everything sits. Again, we've got to, most importantly, preserve the existing workflow coming through and touch wood if we can continue that we don't get any significant spikes then that allows us to do that. Of course, if we get any dips in current workflow then we can divert resource into dealing with the backlog quicker. Certainly we did, at the beginning of this year, write to all applicants individually to explain what we were doing in relation to Project Blue in relation to the backlog and we have written to them periodically in between. The expectation with an active case would be that the applicant would be updated every two months. We haven't stuck strictly to that in relation to our backlog because, obviously, it's not always helpful simply explaining that nothing's happening, but we certainly had contact with all applicants at least twice in the past year, and in addition to the correspondence that we put out in January. Okay, thank you for that. Can you give the committee a progress update on your intervention with SIPA? Yes, certainly. I've got some details here. So the SIPA intervention was opened in June 2021 and the work continues to support the agency rebuilding its FY performance following the cyber attack. A significant issue of the intervention was accessing to reliable and comprehensive performance monitoring data. That work has now been undertaken by SIPA not only to collect the most comprehensive data sets from FY performance that can be measured but also a wider project to rebuild that's wider access to information regime. Again, that's what I was talking about, the self-service from consultants and so on. We set a target of 80 per cent for responses due on or under the time limit by December 2023, and that will go up to 90 per cent from 1 April 2024. Our latest performance figures from them were 85.5 per cent, so they are performing well on that and responding to the targets that have been set for them. Again, we just keep a watch on it. They've been through a pretty awful time, but not helped, I would have to say, by some of the approaches that they've taken as well. We did give them some advice as to how to deal with some of the cases that they were dealing with, but they didn't follow through in that by informing all the applicants how they were dealing with their appeals. That's now been rectified, and they are now being contacted in a managed and measured way to make sure that they don't get swamped, which is not in any of his interests. Again, it's been a difficult time for the agency, but hopefully they will be in a much better position at the end of it. It's also giving them an unexpected opportunity to trial some of these new technologies, both in terms of self-service. We believe that we're looking at redaction software as well to see if that can help with processing things quicker. That's a lot of interest. Generally, going in the right direction? Going in the right direction. Claire, who has been leading on the SEPA intervention, can give you some more details on what I said. Absolutely. The team at SEPA has been working incredibly hard. They found themselves in quite a unique position in terms of the backlog that they received. Obviously, a large percentage of that backlog was information requests made under the environmental information regulations, slightly different than FOI, in that there are very strict time limits. A lot of that backlog had been time barred in terms of appeals to us and the right to seeker review, which is why the position that they took was to close those requests and advise everyone impacted to make a new request for information. The other aspect to that is that they have to consider the request at the time that it was made. At that time, they had difficulty accessing information, so the responses to a large majority of those requests would have been that the information was not held. I think that they have taken the correct approach. They have worked incredibly hard, as they have mentioned. They are investing in using AI software as a redaction tool. They have invested in more staff. They are trying to rebuild a sustainable access information regime, and they are building more public registered, so, as they have already mentioned, that ability to self-serve. I am hoping that that will be held up as a good case study for other authorities in the future. I am monitoring the response, which is what the target is for, and they are above that. You have talked about the access to information regime, the ATI. Are you satisfied that that is as far along the pathway as it should be? Given the impact of the cyber incident on them, the fact that they have managed to invest heavily in staff and its senior management buy-in—again, invariably, with all those interventions that spend senior management buy-in to the access regime—that is when real differences are made. I suppose that it would be helpful to address—I am going to add the word carefully—the intervention with regard to the Scottish Government at the moment. I understand that I am aware that you sent a letter on 7 February on seeking additional information. That time to provide the information was still within it. Is it next Friday? I suppose that my question is at this stage, because you do not have the information. Have you received any confirmation that the information can be provided by your requested date, or are you worried that it might not appear? I have been given assurances that it will arrive with us by 29 February. There may be some additional information that we require, and some follow-up questions from this. There is a question about the intervention activity in the report that was concerned that the ability to intervene had been restricted because of resource implications and things like that. Do you want to give the committee a short explanation about how that came about, but probably more importantly, to re-emphasise the fact that going forward your intervention capacity is back to where you hope it should be? One of the frustrations that I share with my predecessors is that the interventions function is, in my view, the best value of the toolkit. Essentially, it deals with systemic issues and its cross-platform is different authorities. I think that the ability to take the learning from one authority and apply that across no matter the size of it works at a different scale, whether it is Scottish Government or whether it is a small dental practice. It is the same issues that we can help with people regarding that. The frustration that we have is that it is not something that has ever been resourced as part of the function of the Scottish Information Commissioner. It needs to be bolstered, and it has that dedicated team to do that, because the benefits for everyone will be better. That is classic prevention. Coming from a policing perspective, you do not want the crime to happen, you want to stop it happening in the first place before we have to detect it. That is where I see the future, for us, needs to look at that more seriously and see can we get involved here and dedicate the resource to it? At the moment, it is Robin Peter to pay Paul within the organisation. If we take resource off our enforcement capability, that means that we do not get the backlog cleared. It does not mean that we cannot deal with our existing things happening. If we take it from our policy information side of things, we cannot do the training, we cannot do the policy support, which is equally important just now. It is something that I will probably be coming back next year saying that I can have some money. Even before that. You have one level 4 intervention in respect of a council, but that has now been completed and closed. Have you had the ability to review the process of that level 4 intervention to take the best practice from that going forward? Again, I will speak to you on this one or the other. I think that we identified the learning points from that, and I think that we publicised them fairly well. That one was very specific. It was unlike that our level 3 interventions for learning can be much more broad. That was a very particular issue that we had to deal with. As far as I am aware, it has been handled. The specific point of why the level 4, but the fact that it was a level 4 intervention, which is in itself highly unusual. Did local authorities realise the significance and the importance of a level 4? Are you able to take the generic experience of doing a level 4 intervention to say to local authorities in particular, watch out, but we are here to support you, not punish you? Yes. The authority in question certainly realised the importance at the time. The practice recommendation was published, and I think that it was widely publicised on our website. It was a fairly specific point, but it did tie in to issues that we have discussed earlier about senior management buy-in and senior management understanding of their role in relation to where for why. From that point of view, it is important. That is helpful. The last question in this section is probably aimed to you, David, in that in a sense the approach to initiating new interventions has changed substantially in the last 16 weeks. I am just really to give you the opportunity to discuss the concept of being proactive about information that comes available rather than reactive following a request that is put in usually from a member of the public. Whether that is a change, whether it is a change in approach or whether it is just a response to circumstances that you become aware of? To be honest, it is circumstances more than anything. The interventions process is fairly well documented and has been used. There are quite significant numbers that we have done. We have done several hundred numbers, but it is not an uncommon thing to happen. I think that the challenge is that we are reticent to escalate too quickly. We have sometimes been sitting around looking at whether an intervention should be opened, but we are also aware of our capacity. That is a frustrating piece because we want to do this. We think that the authority would benefit from it, but we cannot because we do not have that resourcing. I think that one of the key things here is that authorities by and large welcome interventions. This is another thing that is not a punitive process, it is not adversarial, it is about support. We get them to do the work and they come out in a better position. What we have had is a number of testimonies from authorities who have gone through that process who say that they are really welcome this. That was good at first, but it worked out okay and we are in a better position now. I think that that is a positive to take from it. The process for identifying interventions is also quite interesting in terms of how we are not looking at just enforcement aspects of compliance. We will of course look at that, but we are looking at other intelligence that we are gathering. We are getting information coming in from the authorities and we can monitor that and see where they are at with things. Highlight flags up to us where there are issues. I think that I would like to develop that a little bit more in terms of a kind of intelligence gathering piece whereby people who have good concerns within the authority and its practices can submit something to us without necessarily having to have an enforcement appeal in process. I think that that just gives us that richer picture where we can look at this and find out where we need to focus resources, look at thematic issues and again if we need to take that across the board to do so. Thank you very much. I am going to turn to Stephen. Let me come back to our earlier conversation about teeth. I think that what I am interested to hear is more about what you feel the current legislation is lacking. You mentioned a slight tone of exasperation, some of the games playing that you alluded to in relation to FOI law as it currently stands. I can ask you to elaborate on where you feel changes in primary legislation would give you the sufficient powers and the leverage that you need in order to bring about that change of culture that I certainly would like to see. I think that the key thing—first of all, the powers that are invested in me are actually good and I think that they work well and they have stood the test of time and they have got to be proportionate in terms of what we are looking for. I do think that I find that if there is a suggestion that there has been some kind of subversion of the principles of freedom of information that that is wrong and that that should not be tolerated until we have something specific, because there are criminal offences within the freedom of information Scotland Act, but they are very specific and the remit is quite specific in terms of that there has to have been a request for that information. How do you know as a regulator whether that request has been made or not? There is a bit of—I think that this is why this has become an issue as a consequence of the Covid UK inquiry because, perhaps uniquely, it has opened up a box there, which probably would not have been opened in all truth in the past. That is where we need to have a look at. Now that we are aware of some of the things that have come out in the public, we need to dig into that a bit more and reassure ourselves or take action as to what we find in there. That aside, what we have seen already presents me with concern. I have other people on the back of that inquiry who have contacted the office to say that they are concerned about this particular practice that happens in a particular authority. Now, in the absence of an appeal—I do not have any locus for that—I cannot deal with that, so I suppose that my gateway into this is very narrow and I have got to be able to match that. It just happens, as I say, that the circumstances are that the box has opened up for the Covid inquiry, which allows for that intervention piece. In the absence of that, I do not really think that there is any—I do not have an actual way in. I think that a lot of people have got frustration about that as to why they are not doing something about this, but it is just not there. I think that the other thing that is important to me is that the difference is that I am not the transparency commissioner. A lot of people expect that that is not right, and that is not right. My mailbox has gone extraordinary in the past few weeks in terms of some of the things that people want me to fix, but it is not my remit. It is very much defined in the legislation as freedom of information, and it needs that gateway to operate. There needs to be perhaps a discussion if people want me to do more than that, then there needs to be a review of that gateway. I think that if people are unhappy about clear evidence of that subversion of the principles of FOI, then we need to look at that again, or others need to look at that again and tell them what they wish from it, but it is a frustration for me in terms of trying to promote the regime and give people trust and confidence in it if we do not have those tools. To trust, obviously, in Government in general, not just in Scotland but across the United Kingdom, is a pretty crucial issue of the moment. So much has happened that has led people to doubt, not competence as much as trust and confidence. It is very important that we get this right for the sake of our democratic institutions and our democratic way of life. That sounds very dramatic, but in actual fact that is what we are talking about. What I am concerned about is your ability to resource that kind, however narrow the route into this area of inquiry, your ability to properly—you have two dozen staff, one office, not a huge budget, really. Do you have the strength of arms to be able to take on that kind of a very broad, very fundamental issue in your role in terms of information, not transparency? It would be—we have no surprise to say that no is the answer, but I think that that is a justifiable no. That is because I am looking at this and, again, the benefit of being in the door is thinking, is this all that we have for the size of this task? Eventually, I will become institutionalised because I will say that that is just how it is, but that is what happens with commissioners. I think that the reality is that the freshness of my approach at the moment is that I am looking at this and I am thinking that this is unusual. I cannot believe that we have only got this, and I think that I actually said it at one of the meetings, so where is everyone? Is this it? Does it times feel thin? Is it perhaps too lean, as it is? Again, that is for me to make the case now. Again, that is where we were talking about strategic case. The first plan for me was to stabilise next stage is to grow and develop and to support the regime the way it needs to be. Fundamentally, if we want to do more, we will need more resource, and there is a definite case for that. I am concerned about how you deal with the immovable object. In some respects, you have mentioned the new head of the civil service in Scotland, John Paul Marks, who is much more amenable to this whole cultural approach than perhaps had existed previously. The issue of resource, for example, the James Hamilton. I am not asking to ask you to comment about anything specific, but the overall principle here is that a member of the public saw an FOI. This whole thing ended up in the Supreme Court, where it was finally disclosed that the Scottish Government had not told the truth about what they had and what they did not have. Then there was a ruling about what was FOI-able. Now the Scottish Government is saying in its morning's newspapers an update on this, and I know that you have not commented on this. I will respect whatever you choose to respond to what I am saying, how you choose to respond to what I am saying. However, the Scottish Government, in relation to the possibilities of a further appeal to you, has said that you have confirmed the requirements for the decision notice of the Supreme Court have been complied with. This all sets the stage, does it not, for tackling the immovable object? What exactly happens in a situation where you, as the commissioner, have now got a new definition of what is FOI-able in relation to this specific case and yet the holder of that information says, I am not disclosing any more information? What exactly do you do, given the limitation of your resources? Ultimately, it is a legal instrument. Ultimately, I will make a decision, and if either an applicant or authority is not happy with that, they have the right to take that to the Court of Session and challenge it on the barters of law. I think that that is the practice, that is the process, and it is why we need to make sure that we get it right with quality decisions that are justifiable to stand up. We have a very good track record in the Court of Session and elsewhere by the fact that we do not get many challenges to what we have. Again, that is trust in relation to the organisation. Ultimately, we just need to allow that process to take place forward. It is not about personalities, it is not about politics, it is fundamentally a legal process, an application of law. Essentially, as an office, we are a quasi-judicial body that makes assessments on that, and there is an appeal process to that. We will just do what we do as the right thing to do, and if the Court of Session finds a different way, that is law. I have done my bit, and they have done their bit. That is a fair response. We have confirmed that we are satisfied that the Scottish ministers have complied with the decision notice that was before the court. They have carried out a review in relation to information that the court accepted. They held, yes. That has been done, and the ministers have carried out the review. They have responded to the requestor, and we now have a further appeal, which we will have to consider on the substance. Based on the substance that was defliable that the Scottish Government now accepts, they have got this information. We will leave that there, because I am sure that I will be stopped by the convener, otherwise. I am pushing the envelope, though that is all part of the transparency of the job. You mentioned the disappointment that you felt about the Government's attitude to amending the act specifically. Do you want to just explore that a bit more with us in terms of where you would have liked to have seen a more positive response on the Government? I think that the public consultation that the Government had was very clear. There is an appetite for change across Scotland, both in terms of authority and in terms of applicants. I think that there were some missed opportunities that would have promoted Scotland's transparency and openness in an international framework. I think that it has been harmed as a result of not taking the opportunities to do that. There are a number of measures around the bill that have never been used, such as the First Minister's veto. It has never been used, therefore why do we have it, is one of those things. There are also questions regarding us to the Crown Office and Procurator Fiscal Service as to whether they should be fully covered by FOI. There is a question as to whether somebody who FOI is me and I give a decision, then I cannot, at the moment, somebody else in my office can't review that. Again, that just means that the only avenue that is open is for someone to take me to the court of session on regard of that. Again, that is denying a little bit of that natural justice to people there. Probably the biggest thing, though, is this publication scheme. I do not think that there is enough in the tweaking of codes regarding publication schemes that are there. To put it in context, publication schemes were written at a time where 9 per cent of people had access to broadband and 50 per cent to the internet. It was 20 years old. It is archaic in terms of what it was there was a manual paper filing system as to what it should publish. It pre-existed Google. I think that now we are in a different space. The difficulty that we have is that the scheme is set up in a way that it has become a tick box exercise. We will put people in little folders and hear what we do. It is not interesting or dynamic. It does not allow people to ask the right questions. Most people search for things on search engines now. In the future, of course, chat GPT will come through as well with all the different references. We need to get a different place with that. We would rather just have a duty to publish. Proactively publishing information is a much easier way rather than stipulating how you should do it. When you start stipulating, people go to the most common denominator and say, as well, tick the box there. That is fine. We need to go further in that. I would love to know how many of these... How many did you say there were 80,000? I would love to know how many of those are follow-up, follow-up, follow-up, because asking the right question has not... Having got the right question, therefore, they have been answered absolutely according to the question that they have asked. So they think, I have got to ask another question. In the same way that you might interrogate Google, actually, until you get... Absolutely. As more iterative questions... In such a waste of time and money, compared with what you are suggesting, which is a far more open approach to information management. Can I ask you about Katie Clark's private member's bill? I was a little intrigued, and I probably need you to help me to understand what that means. In her bill, she has got things like the creation of a new statutory officer with a designated responsibility of FYI in public authorities, to which I think your officer's response is partially supportive. I always feel that this is the... In fact, if no one will be offended, it is this thing about being partially pregnant. Are you for it or against it? I think it would be useful to know that I hope no one is offended by my reference in that direction. To the position on pregnancy is for or against. Well, you either are or you aren't, right? Shouldn't there be? Well, I will... The response to that predated me, so if you don't mind, I'll ask Claire to fill in on that. I think the general principle, as I picked up, was from the past response, was more about the fact that the relevance of it makes sense, but, in practice, it's actually more difficult to do, but I shall probably be corrected by... Yeah, no, I think that that pretty much sums it up, as the FYI should be responsibility throughout the organisation as well. It's not just down to one individual, I think that's the key aspect there, although we can absolutely see the benefits of having a statutory officer in place, somewhat like the requirements of the date protection act. But equally, FYI transcends much wider than one individual. Yeah, I think that's the problem. Yeah, exactly. So what you're really saying is that everybody in every avenue of public service should be responsible for information management within their remit. It's cultural and it's also system design. And I think again, this is another one for the future, is that we need to see information management systems embedding feed of information at design stage. And I know there's work going on by some of the IT companies looking about data sharing between different agencies. I know policing for a good example of that, but I actually need to go further on that in terms of do we need to have this stuff behind firewalls at all? And actually switching that round into this is public knowledge that people should have access to. Yeah, because you create one role with responsibility for something that's good across the whole organisation culturally and the organisation goes to sleep on that cultural value. Absolutely. I mean, that's true of quality, just as it's true of information. And the other thing you've got here, here's another, we've got to work this one out, a reduction of exemptions to the act. So I think this is a redefinition of what is FOIable basically particularly in relation to procurement, as I understand the bill, and your response to that was partially opposed. What does that mean, partially opposed? I think what we're saying there is that we think the exemptions that are in place at the moment work well. Right. Yes, some of them could have some tinkering, but largely they work well in practice, so we don't see necessarily the reason to reduce them. I'm not quite sure the point about procurement directly. Well, I think it had to do with the fact that, publicly. Is it in relation to, I think, the submission you made with regard to the Government proposals that the organisations that FOI should apply to, I think, in the Government response you said was probably best dealt with as a schedule rather than as a gatekeeping. I think the same question was asked in a slightly different way in Katie Clark's about the extent to which it should apply. I mentioned procurement because so much of public service delivery is now done by commercial operations, that's well and good, but there is a limitation in terms of how much information commercial operations are liable to provide on an FOI basis, if any at all. I think that's probably the observation that I going back to the beginning is to what I felt when we started looking at some of these commercial aspects because there is, it is a very delicate balancing act and then when you start putting public interest tests on top of that then you're into very challenging and actually something you really need to have a ponder over and I think that's the thing that has perhaps surprised me more than anything coming into this role is the complexity of some of these calls. But I think in terms of if there's a danger of over-legislating on definitions and exemptions and actually having the parameters which we have in terms of the exemptions for me works because it also allows a degree of case law and it allows a degree of future proofing as well and I think that even the, I think one of the, in Katie Clark's build talked about defining information further that probably is not so such a good thing to happen particularly given some recent court cases whereby it's been very clear what the definition of information is and what's held or not to define that takes you into territory where you're actually unintended consequences kick in and that's what we don't want to be. Yeah, you've got to be careful you don't, you don't ask the question, you don't necessarily want the answer to and I think that that's a good question. I mean the other dimension of course is that when commercial operations are bidding to work in the public sector to deliver public services you know they already go through hoops of fire in order to even be considered as potential providers of that service and on top of that you've ladled all the other costs of what we're describing so there's many dimensions of that. I actually think I've probably exhausted my well of questions. That's fine, it's lovely to come to that. Well at the moment I haven't the key looks as if he's just leaving. And I think with regard to the question of legislation it is something that we will clearly return to. Can I thank you David and can I thank your staff for coming this morning? You have survived and we will no doubt see you again. If there is anything subsequently that you feel you'd like to add please feel free to write to the clerks in the normal way but can I thank you for your attendance today and I will now close the public part of this meeting.