28 May 2025
Scottish Information Commissioner David Hamilton has expressed his frustration at NHS’s Fife’s handling of three FOI requests which sought information on the costs of a recent high-profile employment tribunal.
The tribunal, which has attracted significant media attention and debate, concerns a claim by a nurse, against both the authority and another employee.
The requests, which were submitted by three separate individuals during March 2025, each sought information from NHS Fife on its tribunal costs to date.
FOI law provides a right of access to information which is held by a Scottish public authority at the time a request is received. NHS Fife’s initial response to those requests stated that the information requested was exempt under the FOI Act’s exemption which protects personal information.
During the Commissioner’s investigation, however, it became apparent that the information on which NHS Fife had based this response was not information which was held by it at the time the requests were received. Instead, the information on costs had been subsequently obtained from a separate service, the NHS Central Legal Office, which provides legal advice to NHS bodies.
This is important, as the Commissioner is prevented by FOI law from ruling on - including requiring the disclosure of - information which was not held when a request was made.
In the circumstances, the correct approach would have been for NHS Fife to either identify and respond on the basis of information it did hold at the point the request was made or, if no relevant information was held, to notify the requesters of this.
Commenting on this case, Commissioner David Hamilton said:
“It’s extremely frustrating that the action taken by NHS Fife has led to a situation where I am simply unable to rule on the substantive issues at the heart of this case. And, while it is frustrating for me, it will be far more frustrating for those people who sought access to this information.
“In the circumstances, I am only able to require that NHS Fife carry out further searches to identify all information held at the time the request was made and then issue a revised response to the requesters.
“The delays that have arisen as a result were wholly avoidable, and I would urge that all public authorities ensure their responses to FOI requests are based on information they actually hold.”
When corresponding with the Commissioner about this case, NHS Fife also argued that the costs it had obtained from the NHS Central Legal Office would be exempt from disclosure under the FOI exemptions which protect personal information, the commercial interests of an organisation and the health and safety of individuals.
While the Commissioner is prevented from ruling on these specific circumstances, his decision notes that he would be unlikely to be persuaded that the use of these exemptions was appropriate on the basis of the evidence put forward by NHS Fife. He therefore advised that the authority exercise caution when considering related exemptions in relation to any information which is subsequently identified.
NHS Fife has until 14 July 2025 at the latest to issue its revised responses to the three requests.
Read the full Decision: Decision 133/2025
