Decision 002/2022: NHS Recovery Plan 2021-2026 - failure to respond
Public authority: Scottish Ministers
Case Ref: 202101466
Summary
The Applicant asked the Scottish Ministers (the Ministers) for information about the NHS Recovery Plan covering the period 2021-2026. This decision finds that the Ministers failed to respond to the request within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA). The decision also finds that the Ministers failed to comply with the Applicant’s requirement for review within the timescale set down by FOISA.
The Commissioner has ordered the Ministers to comply with the requirement for review.
Background
1. The Applicant made an information request to the Ministers on 28 September 2021.
2. The Ministers did not respond to the information request (they apologised for failing to do so on 27 October 2021).
3. On 28 October 2021, the Applicant wrote to the Ministers, seeking a review in respect of their failure to respond.
4. The Applicant did not receive a response to his requirement for review.
5. The Applicant wrote to the Commissioner on 26 November 2021, stating that he was dissatisfied with the Ministers’ failures to respond and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.
6. On 26 November 2021, the Ministers were notified in writing that an application had been received from the Applicant and were invited to comment on the application.
7. The Commissioner received submissions from the Ministers on 10 December 2021. These submissions are considered below.
Commissioner’s analysis and findings
8. The Minsters acknowledged their failures to respond to the Applicant’s request and requirement for review. These failures were attributed to high volumes of work, the Ministers accepting that the handling of the case had fallen short of the required standard.
9. Section 10(1) of FOISA gives Scottish public authorities a maximum of 20 working days following the date of receipt of the request to comply with a request for information. This is subject to qualifications which are not relevant in this case.
10. It is a matter of fact that the Ministers did not provide a response to the Applicant’s request for information within 20 working days, so the Commissioner finds that they failed to comply with section 10(1) of FOISA.
11. Section 21(1) of FOISA gives Scottish public authorities a maximum of 20 working days following the date of receipt of the requirement to comply with a requirement for review. Again, this is subject to qualifications which are not relevant in this case.
12. It is a matter of fact that the Ministers did not provide a response to the Applicant’s requirement for review within 20 working days, so the Commissioner finds that they failed to comply with section 21(1) of FOISA.
13. The remainder of section 21 sets out the requirements to be followed by a Scottish public authority in carrying out a review. As no review has been carried out in this case, the Commissioner finds that the Ministers failed to discharge these requirements: he now requires a review to be carried out in accordance with section 21. Noting that the Ministers have confirmed that a review is in progress, the Commissioner would urge that this is completed, and the outcome communicated to the Applicant, as soon as possible.
14. The Commissioner recommends that the Ministers consider whether it would be appropriate to apologise to the Applicant for their failure to comply with his requirement for review.
Decision
The Commissioner finds that the Scottish Ministers (the Ministers) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2020 (FOISA) in dealing with the information request made by the Applicant. In particular, the Ministers failed to respond to the Applicant’s request for information and requirement for review within the timescales laid down by sections 10(1) and 21(1) of FOISA.
The Commissioner requires the Ministers to carry out a review and issue a review outcome, by 28 February 2022.
Appeal
Should either the Applicant or the Ministers 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 Ministers fail to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Ministers have failed to comply. The Court has the right to inquire into the matter and may deal with the Ministers as if they had committed a contempt of court.
Euan McCulloch
Deputy Head of Enforcement
12 January 2022
