This is the first time the court has been asked to rule on a failure to comply since the law became operational 21 years ago and benefits us all as it reminds the 10,000 public bodies subject to FoI of the obligation to respect the authority of the commissioner and to comply with legal deadlines. 

When the commissioner petitioned the court on 2 February 2026, ministers had failed to meet the deadline of 15th January 2026, failed to request any specific time extension, failed to meet the extended deadline to 22 January and never apologised. The withheld information was disclosed roughly six weeks late which is a “a substantial period”. In their evidence, Scottish ministers accepted they had failed to produce the withheld information and send to the requestor within the specified deadline. Ministers had publicly admitted noncompliance at the time when challenged by MSPs in Parliament. 

So what had happened? The physical process of reviewing the documents for disclosure did not properly start until January 2026 and although it became obvious the deadline would be missed, the commissioner was only alerted five minutes before the deadline passed. This case “is all the more reprehensible” because ministers have a role in making the law, should understand the importance of the rule of law and ought to observe a date for compliance.

The Scottish government’s failure to comply with timelines has been a problem over the last nine years. The first formal intervention by the commissioner, Rosemary Agnew, began in January 2017 when it was noted that an earlier improvement in the Scottish government’s compliance with statutory timescales for FoI requests and reviews was not going well so targets were set and monitored. However the problems were broader.

On 21 June 2017, a unanimous motion was passed by MSPs requiring an independent inquiry into how the Scottish government dealt with FoI requests under the Freedom of Information (Scotland) Act 2002 (FoISA) and mandating post-legislative scrutiny FoISA. A committee of the Parliament scrutinised FoISA and produced a critical report in May 2020 recommending legal reform including replacing the discredited Model Publication Scheme with an enforceable requirement to proactively publish information. 

The next commissioner, Daren Fitzhenry, undertook the inquiry resulting in an ‘action plan’ agreed with ministers in November 2018. This level three intervention, level four being the most serious, has seen periods of improvement followed by notable declines in performance such as during Covid and in March 2023. By the time his term of office ended, he reported performance “had not reached a point where this work can be appropriately concluded.” That level three intervention continues under the current commissioner and is the longest running intervention at any level.

Going forward, there is an opportunity to improve culture, practice and compliance. Despite the Scottish government’s opposition to legal reform and its decision in February 2026 to vote against the General Principles of the Freedom of Information Reform (Scotland) Bill, a majority of MSPs voted for the bill at stage one so can be reintroduced by Katy Clark MSP in this seventh session of Parliament. The bill strengthens several enforcement powers and designates FoI officers in public bodies to deliver a range of functions including implementing effective systems for the management and disclosure of information. The Campaign for Freedom of Information in Scotland hopes MSPs will pass the bill at the earliest opportunity as this is the third session of Parliament offering the opportunity to legislate.

There are positive signs that Parliament intends to consistently hold the executive to account on FoI and ensure funding for the independent commissioner is openly assessed by adding “proposals for the formation and budgets of officeholders established by the Parliament” to the functions of the newly named Finance and Public Administration Committee. Perhaps now there will be sufficient funding to manage soaring FoI appeals, address increasing poor practice through formal ‘interventions’ and enforcing stronger legal rights and duties such as through pro-active publication designed to reduce the need for formal FoI requests.

Delivering a more robust FoI law and a better funded system of enforcement serves the public interest as we each benefit from transparent and accountable public institutions.

Carole Ewart is the director of the Campaign for Freedom of Information in Scotland (CFoIS)