Decision 098/2023: Standard Operating Procedures – failure to respond
Authority: Scottish Prison Service
Case Ref: 202301027
Summary
The Applicant asked the Authority for information contained within the peer
tutoring/peer support Standard Operating Procedures. This decision finds that the
Authority failed to respond to the Applicant’s requirement for review within the
timescale set down by the Freedom of Information (Scotland) Act 2002 (FOISA).
Background
1. The Applicant made an information request to the Authority on 29 April 2023.
2. The Authority responded to the information request on 29 May 2023.
3. On 21 June 2023, the Applicant wrote to the Authority requiring a review of its
decision.
4. The Applicant did not receive a response to his requirement for review.
5. The Applicant wrote to the Commissioner, 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 18 August 2023.
8. The Authority did not provide the Commissioner with any submissions.
9. 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. 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 requirement for review within 20 working days, so the Commissioner finds
that it failed to comply with section 21(1) of FOISA.
11. 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.
12. 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
requirement for review within the timescales laid down by section 21(1) of FOISA. The
Commissioner requires the Authority to respond to the Applicant’s requirement for
review, by 24 November 2023.
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
(Acting) Deputy Head of Enforcement
10 October 2023
