Practice Recommendations
Under section 44 of FOISA, the Commissioner has the power to issue a Practice Recommendation if he considers that a public authority is not conforming to the Scottish Ministers' Codes of Practice issued under sections 60 and 61.
When might a Practice Recommendation be issued?
The Commissioner does not intend to issue Practice Recommendations for minor failures to conform to the codes - but rather where there has been a particularly serious or systematic failure. First time or one-off failures are unlikely to lead to a Practice Recommendation but would be noted for future reference. The Commissioner will consider the following criteria when deciding whether to issue a Practice Recommendation:
- The outcome of any Practice Assessment carried out for the authority.
- Evidence the Commissioner holds relating to that authority's practice including complaints made, or issues arising during investigations.
- The number of recorded and relevant practice failures by the authority.
- The nature and severity of any failure to conform.
- The outcome of any further investigation he feels is required in order to decide whether to issue a Practice Recommendation.
What happens next?
It's likely that an investigation will be conducted before a Practice Recommendation is issued. If there has been a recent Practice Assessment, this may provide sufficient evidence, although further investigation will be conducted if required.
At this stage, the Commissioner will consider whether it may be possible to resolve problems by alternative means, without having to take the formal action of issuing a Practice Recommendation.
What will a Practice Recommendation contain?
If the Commissioner considers it appropriate to issue a formal Practice Recommendation, under s44 of the Act, it will be issued by recorded delivery to the authority, setting out:
- the Codes(s) of Practice with which the authority has failed to conform - and the specific provisions of the Code(s)
- the steps recommended to conform with those provisions
- the time within which the steps should be taken.
The Commissioner must consult with the Keeper of the Records of Scotland before issuing a practice recommendation in relation to breaches of the Section 61 Code of Practice, which relates to records management.
Although a Practice Recommendation is not enforceable in the Courts, the Commissioner will expect compliance within a reasonable time (generally six months) and may consider the possibility of an Enforcement Notice if the authority fails to comply.
Practice Recommendations Issued
You can also Subscribe to our News RSS Feed to receive updates of new reports and publications, including assessment reports and Practice Recommendations, directly to you computer.
| Date | No. | Ref. | Public Authority | Practice Recommendation |
|---|---|---|---|---|
| 6 July 2010 | 01/2010 | EN-9003 | Scottish Borders Council |