Decision 133/2025: Costs of a specified employment tribunal
 

Authority: NHS Fife
Case Refs: 202500335, 202500336 and 202500384
 

Summary

The Applicants asked the Authority (in separate requests) for information on the cost of a specified tribunal.  The Authority withheld the information requested because it was third party personal data.  During the investigation, the Authority applied other exemptions in FOISA to the withheld information it provided to the Commissioner but also stated that it did not hold this information at the date it received the requests. The Commissioner investigated and found that the Authority failed to comply with FOISA in responding to the requests.  He required the Authority to carry out fresh reviews and to provide the Applicants with revised review outcomes.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2), (4) and (6) (General entitlement); 17(1) (Notice that information is not held); 47(1) and (2) (Application for decision by Commissioner).

Background

1. On 4 February 2025, 5 February 2025 and 27 February 2025, the Applicants made separate requests regarding a specified employment tribunal.  They asked the Authority for how much the tribunal had cost the Authority to date (including, in one request, for a breakdown of all costs and, in two requests, for anticipated costs).
2. By way of background, the specified employment tribunal relates to a formal claim by an employee of the Authority, against both the Authority and a specific employee of the Authority. It is a high-profile and ongoing case, the details of which are in the public domain, which has attracted significant media attention.
3. The Authority responded (separately) on 13 February 2025 (two of the requests) and 4 March 2025.  For each request, it withheld the information requested under section 38(1)(b) of FOISA.
4. On 13 February 2025, 14 February 2025 and 4 March 2025, the Applicants wrote to the Authority requesting reviews of its decisions. They stated that they were dissatisfied with the decisions because they did not believe the exemption in section 38(1)(b) of FOISA applied and, even if it did, disclosure would be lawful.
5. The Authority notified the Applicants (separately) of the outcomes of its reviews on 4 March 2025 (two of the Applicants) and 11 March 2025, which fully upheld its original decisions.
6. On 4 March 2025 (two of the Applicants) and 11 March 2025, the Applicants wrote to the Commissioner, applying for decisions in terms of section 47(1) of FOISA.  They stated that they were dissatisfied with the outcome of the Authority’s review because they did not agree that the Authority was entitled to withhold the information requested under the exemption in section 38(1)(b) of FOISA. 

Investigation

7. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
8. On 17 March 2025, 18 March 2025, and 31 March 2025, the Authority was notified in writing that the Applicants had each made a valid application.  The Authority was asked to send the Commissioner the information withheld from the Applicants.
9. The case was subsequently allocated to an investigating officer.
10. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions related to its reasons for withholding the information. The Authority provided its comments and provided the withheld information at the same time.
11. The Authority stated that, at the date it received the requests, it had “no indication of costs” associated with the employment tribunal.  It confirmed that this information had been provided by Central Legal Office (CLO), part of NHS National Services Scotland, which provides NHS Scotland with legal advice.
12. The Authority also submitted that, in addition to the exemption in section 38(1)(b) of FOISA, it wished to rely on the exemptions in sections 33(1)(b) and 39(1).
13. The Commissioner subsequently sought further clarity from the Authority on the information it held relevant to the requests at the date they were received and further submissions from the Authority on the exemptions it was relying on. 

Commissioner’s analysis and findings

14. The Commissioner has considered all of the submissions made to him by the Applicants and the Authority. 

Information held

15. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority which holds it is entitled to be given that information by the authority, subject to qualifications which, by virtue of section 1(6) of FOISA, allow Scottish public authorities to withhold information or charge a fee for it.  The qualifications contained in section 1(6) are not applicable in this case.
16. The information to be given is that held by the authority at the time the request is received, as defined by section 1(4).  This is not necessarily to be equated with information an applicant believes the authority should hold.  If no such information is held by the authority, section 17(1) of FOISA requires it to give the applicant notice in writing to that effect.
17. The standard of proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities.  In determining where the balance of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority. 

The Authority’s submissions

18. During the investigation, the Authority explained that, at the date it received the requests, it did not hold information on costs or anticipated costs of the employment tribunal.  It said that it requested this information from CLO in order to facilitate a response to these requests.  It confirmed that this information was provided “after the review requests were received”.
19. The Authority was asked how it established that it did not hold the information requested when it received the Applicants’ requests and, if it did not hold it, why it did not issue them with a notice, in terms of section 17(1) of FOISA, to that effect.
20. The Authority responded that CLO held the information requested for “billing” the Authority and “costs being invoiced”.  It also said that it was an “oversight” not to issue a notice in terms of section 17(1) of FOISA and explained that it “imagined that information would be held by [the Authority] when invoiced from CLO”.

The Commissioner’s view

21. As set out above, the information to be given is that held by the authority at the time the request is received, as defined by section 1(4) of FOISA.  
22. In this case, the withheld information the Authority provided to the Commissioner was obtained from CLO after the date it received the Applicants’ requests.  This means the Commissioner cannot make a finding on, or require disclosure of, this information in his decision notice.
23. However, the fact that the Authority provided the information it obtained from the CLO as the withheld information in this case does not mean that the Authority did not hold information relevant to the Applicants’ requests when they were received.
24. The Authority should have undertaken adequate and proportionate searches to ascertain what information it held relevant to the requests when they were received.  Had it done so, this would have either revealed that:

• it did hold information relevant to the requests.  If this information had been exempted from disclosure by the Authority, the Commissioner would have been able to make a finding on that information, including requiring disclosure of that information if he did not consider the cited FOISA exemptions applied.

• it did not hold information relevant to the requests.  Such a response should have been accompanied by advice and assistance, in terms of section 15 of FOISA, that requests for this information could instead be made to NHS NSS as the information was held by CLO.

25. However, the Authority does not appear to have undertaken any searches in response to the Applicants’ requests.  Instead, it chose to request this information from CLO.  It may be the case that CLO held the most complete or up-to-date costs, but the Commissioner cannot, based on the submissions he has received, be satisfied that the Authority did not hold any information falling within the scope of the requests at the date it received them.  Even allowing for whatever relevant arrangements it may have with the CLO, he cannot accept the Authority reaching a conclusion on what it holds, in the circumstances, wholly without recourse to its own records.
26. The Commissioner is frustrated – a feeling no doubt shared by the Applicants – that the Authority’s poor handling of these requests has placed him in a position where he is effectively limited to requiring it to carry out adequate, proportionate searches for the information requested, reach a decision on the basis of those searches, and notify the Applicants of the outcome (all in terms of section 21 of FOISA). This unnecessary delay hampers the applicants with their information rights, and reflects poorly on the Authority. 

The exemptions applied by the Authority to the information it obtained from CLO

27. During the investigation, the Authority confirmed that it wished to apply the exemptions in sections 33(1)(b), 38(1)(b) and 39(1) of FOISA to the information it obtained from CLO after the date it received the requests from the Applicants.
28. As explained above, the Commissioner cannot reach a finding on, or require disclosure of, the information the Authority obtained from CLO as this information was not held at the date of the Applicants’ requests.
29. The Commissioner will therefore not fully reproduce, or consider in detail, in this decision notice the submissions the Authority provided in support of the application of the above FOISA exemptions. However, in the circumstances, he considers it appropriate to comment briefly on the justification the Authority has provided for applying these exemptions.
30. Having carefully reviewed the Authority’s submissions, the Commissioner considers that the Authority has not, in submissions offered to date, made the case that disclosure of this information would, or would be likely to, result in the substantial prejudice or harm required, respectively, for the exemptions in sections 33(1)(b) or 39(1) of FOISA to be engaged.
31. In terms of section 33(1)(b) of FOISA, the Authority identified CLO as the party whose commercial interests were of concern, though it also stated that disclosure would have “wider prejudice” to NHS NSS and that it could prejudice the Authority’s own interests in the ongoing employment tribunal.
32. The Commissioner finds the Authority’s submissions on the substantial prejudice to commercial interests that disclosure of the specific information requested would, or would be likely to, cause to be speculative and lacking in detail of the kind that would be required to substantiate the exemption.
33. In terms of section 39(1) of FOISA, the Commissioner does not agree that the Authority has established, based on the submissions it provided, any credible link between disclosure of the specific information requested and any risk of harm to the health and safety of any individual (or group of individuals).
34. The Commissioner recognises the strength of feeling regarding the matters under consideration in the employment tribunal and the significant public interest and media attention it has attracted. However, he cannot envisage that disclosure of the specific information requested would meaningfully add to whatever risks to the health and safety of any individual (or group of individuals) may already exist.
35. Unless the Authority has new, specific submissions to make, of genuine substance, the Commissioner cannot see how either exemption would apply – and he notes that that the Authority has already had two opportunities to justify their application.  It would appear likely that similar considerations would apply to any relevant information held by the Authority, in the absence of specific, focused submissions meeting the relevant statutory tests.
36. In terms of section 38(1)(b) of FOISA, the Commissioner cannot accept that the specific information requested can be the personal data of either of the individuals party to the tribunal.  The costs are the Authority’s, not theirs. The costs do not appear to say anything of significance about either individual, nor would the disclosure of the costs add in any meaningful sense to what is already known about either individual by virtue of information in the public domain.
37. The Authority also argued that the fees paid to the counsel representing the Authority was the counsel’s personal data. The Commissioner has previously considered the matter of fees paid to counsel in Decision 052/2005[1].
38. In that case, the Commissioner expressed reservation over whether this information would comprise personal data but concluded, in any case, that the exemption in section 38(1)(b) of FOISA did not apply. Among other reasons, he reached this view after finding it was reasonable to expect, given the high-profile nature of the case concerned, that the fees paid (which were an important use of public funds) would not remain a private matter between the counsel and their clients.
39. The Commissioner is of the view that similar considerations apply in this case.  Based on the submissions he has received, he has serious reservations over whether the exemption in section 38(1)(b) could be properly applied to withhold the information requested – unless the Authority has new, specific submissions to make, of genuine substance.  (The Commissioner again notes the multiple opportunities the Authority has had to date to justify the application of this exemption.)

Next steps

40. During the investigation, the Authority that indicated that it was part of an indemnity scheme, which provides cover for legal costs for claims against the NHS in Scotland and which would limit its costs in relation to the tribunal.
41. The Commissioner considers this information to be of clear relevance to the Applicants’ requests and to the associated issue of public funds expenditure.  As a result, he considers it was unhelpful of the Authority to have not provided information about this indemnity scheme to the Applicants as part of its duty, under section 15 of FOISA, to provide advice and assistance.
42. As stated above, the Commissioner requires the Authority to carry out adequate, proportionate searches for the information requested, reach a decision on the basis of those searches, and notify the Applicants of the outcome (all in terms of section 21 of FOISA).
43. In carrying out the revised review response, the Commissioner would invite the Authority to:

• provide the Applicants with advice and assistance, in terms of section 15 of FOISA, regarding the indemnity scheme described above

• consider carefully his view on the justification the Authority provided for applying the exemptions in sections 33(1)(b), 38(1)(b) and 39(1) of FOISA to withhold the information it obtained from CLO.

Decision 

The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information requests made by the Applicants. 

Specifically, the Authority has failed to satisfy the Commissioner that it does not hold any information relevant to the Applicants’ requests.  As a result, he finds that the Authority failed to comply with section 1(1) of FOISA. 

The Commissioner therefore requires the Authority to carry out adequate, proportionate searches for the information, reach a decision on the basis of those searches and notify the Applicants (separately) of the outcome (all in terms of section 21 of FOISA), by Monday 14 July 2025.

Appeal

Should either the Applicants or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

Enforcement  

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply.  The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

David Hamilton

Scottish Information Commissioner

28 May 2025