Decision Notice 280/2024: Fingerprint procedure for prison visitors – failure to respond
Authority: Scottish Prison Service
Case Ref: 202401468
Summary
The Applicant asked the Authority for information relating to the correct fingerprint procedure for staff to
follow when admitting a registered visitor to an arranged session. This decision finds that the Authority failed
to respond to the request and requirement for review within the timescales allowed by the Freedom of Information
(Scotland) Act 2002 (FOISA).
Background
1. The Applicant made an information request to the Authority on 28 June 2024.
2. The Authority did not respond to the information request.
3. On 16 August 2024, the Applicant wrote to the Authority requiring a review in respect of its failure to respond.
4. The Applicant did not receive a response to his requirement for review.
5. The Applicant wrote to the Commissioner on 7 November 2024, stating that he was dissatisfied with the
Authority’s failure to respond and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.
6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the
power to carry out an investigation.
Investigation
7. Section 49(3)(a) of FOISA requires the Commissioner to notify public authorities of an application and to
give them an opportunity to comment. The Commissioner did this on 7 November and 11 November 2024.
8. The Authority did not provide the Commissioner with any submissions.
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 Authority did not provide a response to the Applicant’s request for
information within 20 working days, so the Commissioner finds that it 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 Authority did not provide a response to the Applicant’s requirement for
review within 20 working days, so the Commissioner finds that it 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 Authority
failed to discharge these requirements: he now requires a review to be carried out in accordance with section 21.
14. The Commissioner recommends that the Authority considers whether it would be appropriate to apologise to
the Applicant for its failure to comply.
Decision
The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland)
Act 2002 (FOISA) in dealing with the information request made by the Applicant. In particular, the Authority
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 Authority to respond to the Applicant’s
requirement for review, by 13 January 2025.
Appeal
Should either the Applicant 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.
Cal Richardson
Deputy Head of Enforcement
28 November 2024
