23-24/60

I refer to your request dated 2 December 2023 for a review of the response you received on 1 December 2023 to your original information request (FOI23-24/60).  I have been appointed to undertake the internal review. 

I have considered your review request, the information you requested and our organisation’s obligations under the Freedom of Information(Scotland) Act 2002 (FOISA). I have concluded that the original decision should be substituted with a new decision.    

Your original request   

In your original request you stated the following:  

Whether or not the Chief Executive advised you in the preparation of the response to my information request (FOI 23-24/49)?  

Whether or not the Head of Policy advised you in the preparation of the response to my information request (FOI 23-24/49)?  

We responded to your request for information on 1 December 2023 by confirming that our Chief Executive did not advise in the preparation of the response to FOI 23-24/49 and withholding whether I advised in the preparation of the response to FOI 23-24/49.  

Your internal review request   

In your review request you state: 

You have not considered my legitimate interests and have not asked me about this as the Commissioner’s guidance suggests would be good practice. 

One reason that I wish to know if the Head of Policy was involved in the decision making is because the Head of Policy also carries out the processing of review requests. In this case she responded to my review request and said: 

“To enable your request to be considered afresh and impartially by someone who had not responded to your original request, I was appointed to undertake the internal review”. 

While it is clear that she is not the person who responded to my original request, if she advised the responder in its preparation then this might suggest a lack of transparency and the claimed independence. This is specifically important in this case as I had raised the question of who had advised on the response and the question of independence of the review process when I submitted my review requirement.  

As you may know, I have an interest in openness, transparency and integrity within GTC Scotland, and such information might help to either hold GTC Scotland to account, or alternatively to reassure me that the process was fully independent.  

The involvement or not of the Head of Policy in giving advice on the response is also of interest to me because of the nature of the response - which was to claim the request was a repeat when it clearly was not, giving GTC Scotland at least a further 20 days to respond appropriately, and the statement a few days earlier by the Head of Policy, copied to the Chief Executive, implying that the request had been acknowledged when it had not. 

While the specific piece of information I am requesting might not, on its own, be of significant public interest, it might potentially, and eventually, contribute to evidence of a pattern of behaviours by the organisation which the public would have an interest in.  

Set against my legitimate interests are the rights of the individual. In this situation the information is about the subject’s public life – processing of information requests. Their role as Head of Policy for an important national organisation makes them a senior person. While disclosure that the person did in fact advise on the response (if indeed that is the case)might cause some discomfort, embarrassment or distress, this would be in a public capacity related to the senior role and not in a private capacity. It is difficult to see how disclosure that the person did not advise on the response could cause any distress. 

Our response  

I have now considered your submissions in your review request and I can advise that I did offer limited advice in relation to FOI23-24/49. Whilst the Code of Practice on the discharge of functions by Scottish public authorities under FOISA states at 10.4.3 that “it is good practice for the reviewer to be a person who did not respond to or advise on the original request” this is not a requirement and only required where “possible or practicable” in the circumstances. Decision 106/2023 of the Scottish Information Commissioner provides helpful guidance on this issue (see paragraphs 43-45). In this case, my advice was limited to supporting a new member of staff to use the processes and resources available to him to make the initial response. 

I hope that this has been of some assistance but if you remain dissatisfied with the responses you have received, you have the right to appeal to the Scottish Information Commissioner. You must do so within six months of receipt of this response. The Scottish Information Commissioner’s guidance on making an appeal describes the process, including the application form. Further information, including relevant contact details is available on the website.