Scotland’s Freedom of Information watchdog is proposing one of the most significant changes to its appeals process in years. After a sharp rise in cases, much of it linked to AI-assisted requests by the Scottish Information Commissioner (SIC), the SIC wants to limit how many live appeals any one person can have at a time. It’s a practical response to a genuine resourcing problem, but it also raises questions that haven’t yet been fully answered.
Your rights under Scottish FOI law
Under the Freedom of Information (Scotland) Act 2002 (FOISA), anyone can ask a Scottish public authority for information it holds, regardless of who they are or why they want it. If a request is refused, or the response falls short, the requester can ask the authority for a review. If they’re still unhappy, section 47 of FOISA gives them the right to appeal to the Scottish Information Commissioner.
Once a valid appeal is made, section 49 says the Commissioner must reach a decision on it. The only exceptions are where the Commissioner considers the appeal frivolous or vexatious, or where it appears to have been withdrawn or abandoned.
In plain terms, “frivolous” generally covers appeals with no serious purpose or reasonable chance of achieving anything, while “vexatious” covers requests or appeals that are designed to harass, burden or disrupt an authority, or that form part of an unreasonable pattern of behaviour, rather than being made for a genuine informational purpose. Neither term is about the topic being trivial. An appeal about a serious issue can still be found vexatious if the way it’s being pursued is manifestly unreasonable, for example through excessive volume or repetition. One of the questions raised below is whether a fixed cap on numbers is really the same thing as judging vexatiousness on a case-by-case basis.
Historically, this has been an unrestricted right. There has been no limit on how many appeals a single person could have open at once.
Requests and appeals aren’t the same thing
It’s worth being clear about where a request ends and an appeal begins, because the proposed cap only affects one of them.
A request is the initial ask. Anyone can submit one directly to a Scottish public authority, whether that’s a council, the Scottish Government or a health board, and the authority is responsible for handling it. Under FOISA, the authority must respond within 20 working days. Where they’re holding the information, they must either provide the information or cite a valid exemption for withholding it. If the requester isn’t satisfied with that response, the next step is a review, carried out by the same authority.
An appeal only comes into the picture after that. If the requester remains unhappy once the authority has completed its review, or hasn’t responded to the request for review, section 47 gives them the right to take the matter to the Scottish Information Commissioner, an independent body separate from the authority that handled the original request. The Commissioner then investigates and issues a formal decision, which is legally binding on the authority.
This distinction matters here because the proposed cap only applies to the appeal stage. It doesn’t affect anyone’s right to submit a request in the first place, or to ask for a review. It only limits how many cases a person can have live with the SIC at any one time, once they’ve already been through the first two steps.
Why the SIC is proposing a change
According to Scottish Legal News, the SIC received 1,084 appeals in 2025-26, up from 593 the year before, an increase of 83 per cent. The SIC’s office has pointed to a small number of applicants, apparently using AI tools to generate high volumes of lengthy appeals, as a significant driver.
It’s worth noting this isn’t only a volume problem. The team at Tkm discussed this recently, and the point that stood out wasn’t the number of appeals but their length and quality. AI-generated submissions can run to pages of padding around a much smaller substantive point, meaning caseworkers have to work harder just to find the actual issue being appealed. And they often contain AI-slop – spurious or irrelevant assertions or interpretations of law.
The proposed response is a cap of five live appeals per person, to be built into a new Investigation Handbook. Appeals beyond the cap won’t be rejected outright. They’ll simply wait until the person’s earlier cases are resolved.
Who this affects
The cap applies to anyone submitting FOI appeals in Scotland, but it will land hardest on people who routinely run several appeals at once, potentially including investigative journalists and transparency campaigners. Scottish Legal News reports that one requester currently pursuing several linked appeals connected to the James Hamilton inquiry into Nicola Sturgeon’s conduct has already raised concerns that the change could disadvantage genuine, high-value scrutiny work rather than the AI-generated volume it’s aimed at. Labour MSP Katy Clark has also linked the proposal to sustained underfunding of the Commissioner’s office.
Public authorities aren’t directly named in the proposal, but they sit at the front of this same funnel. They’re already handling a growing volume of lengthy requests before anything reaches appeal stage. A cap at the Commissioner’s end may ease pressure downstream over time, but it doesn’t change what authorities are dealing with day to day.
Questions we think still need clarifying
A few things haven’t been spelt out yet, and we think they matter.
First, the legal basis. Section 49 allows the Commissioner to decline to decide an appeal that’s frivolous or vexatious, but that may not be the only route available. FOISA sets no statutory timescale for the Commissioner to reach a decision, which arguably gives the SIC scope to manage the pace of casework, including through a cap, without relying on the frivolous or vexatious test at all. The SIC has also indicated that the cap won’t be applied automatically. Staff will use discretion on a case-by-case basis. That’s a meaningfully different picture to a hard, mechanical threshold, and it isn’t yet clear how that discretion will be exercised in practice.
Second, why five specifically? No detailed reasoning has been published for that number, or for how it accounts for the SIC’s own backlog. If older appeals take a long time to resolve, a genuine requester could hit the cap through no fault of their own, although the SIC is clear that this is intended to be a discretionary measure, not a blanket one.
Third, the impact of the use of AI for submitting FOI requests and appeals on public authorities has had very little airtime, despite them facing similar pressures from the same underlying trend. The SIC has taken this step to protect their own resources, but public authorities do not have that luxury.
We think this is a sensible and proportionate step for the Commissioner to take, and one that should bring more scrutiny and confidence to the appeals process. But a clearer published rationale, particularly on the legal footing to help public authorities take the same approach, would give everyone more confidence in how it will work.
Watch: our team discusses the proposed changes
We sat down as a team to talk through this proposal in more depth, including the legal basis for the cap, why AI-generated appeals are as much about length as volume, and what we’d like to see clarified for public authorities.
This video was recorded as our first look at the proposal, and our thinking on the legal detail has moved on a little since. We’ll be recording a follow-up to dig further into the legal basis for the cap, including how the SIC’s discretion is likely to work in practice, so keep an eye out for that.
If you’d rather read a summary, the key points are covered in the sections above. But if you want the fuller discussion, including some of the finer detail on section 49 and how this might play out in practice, it’s worth a watch.
If your organisation needs support navigating FOI or wider information governance obligations, Tkm & Associates offers practical, expert-led FOI training and information governance consultancy built around real-world application.
