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Decision 098/2023

Decision 098/2023: Standard Operating Procedures – failure to respond

Authority: Scottish Prison Service 
Case Ref: 202301027


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).  


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 

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.


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.


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.


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.


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