Carole Ewart: Court upholds Scottish Information Commissioner’s investigatory powers

The Court of Session ruling reinforces the independence of the Scottish Information Commissioner, establishing that public bodies cannot unilaterally decide to withhold information. This judgment confirms that the Commissioner must independently determine exemptions rather than deferring to the authorities holding the data. This legal clarity is vital for open data because it prevents public bodies from acting as judges in their own cases, thereby ensuring the public’s right to information remains robust and not diluted by administrative discretion. However, the decision significantly increases the regulatory burden by requiring the Commissioner to actively identify and consider relevant legal precedents in every case. Given the sharp rise in appeals, this added responsibility threatens to overwhelm existing resources, potentially forcing reliance on external legal services. For open data governance, this highlights a critical vulnerability: without adequate staffing and funding, enforcement mechanisms become ineffective, allowing delays and resource constraints to undermine the practical realization of transparency rights. Consequently, the article underscores that institutional strength depends on sufficient resources rather than just legislative authority. The ruling serves as a timely reminder to parliamentarians that protecting regulatory functions requires more than statutory mandates; it demands financial investment to handle increased workloads. Ensuring the Commissioner has the necessary capacity is essential for maintaining public trust in open data frameworks, as under-resourced bodies risk becoming ineffective, mirroring global trends where lack of support weakens human rights and transparency protections.

Source: scottishlegal.com
Published on 2026-11-04

Carole Ewart: Court upholds Scottish Information Commissioner’s investigatory powers

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