NHS Fife branded 'extremely frustrating' by watchdog over handling of Sandie Peggie FOI requests

NHS Fife has been criticised by Scotland’s information watchdog over its handling of Freedom of Information (FOI) requests relating to the cost of the Sandie Peggie employment tribunal.

David Hamilton, the Scottish Information Commissioner (SIC), said the actions of the health board were “extremely frustrating”.

It comes after three individuals submitted requests seeking the cost of the tribunal, which is centred on a transgender doctor using a female changing room.

Sandie Peggie | PA

Ms Peggie, a nurse, was suspended from her work at the Victoria Hospital in Kirkcaldy, Fife, in January last year after she objected to Dr Beth Upton, a trans woman, using the female changing room in the A&E department.

She has lodged a claim against the Fife health board and Dr Upton, citing the Equality Act, including sexual harassment, harassment related to a protected belief, indirect discrimination and victimisation.

NHS Fife has since been urged to concede the case following a Supreme Court ruling that a woman is defined by biological sex under equality laws. The SIC said the health board’s initial response to the FOI requests stated the information was exempt under rules protecting personal information.

However, it does not appear to have undertaken any searches for the information in response to the requests. Instead, it was subsequently obtained “after the review requests were received” from a separate service, the NHS Central Legal Office, which provides legal advice to NHS bodies.

This is important, the SIC said, as it is prevented by FOI law from ruling on, or requiring the disclosure of, information that was not held when a request was made.

The watchdog said the correct approach would have been for NHS Fife to either identify and respond on the basis of information it did hold at the point the request was made or, if no relevant information was held, to notify the requesters of this.

Mr Hamilton said: “It’s extremely frustrating that the action taken by NHS Fife has led to a situation where I am simply unable to rule on the substantive issues at the heart of this case. And, while it is frustrating for me, it will be far more frustrating for those people who sought access to this information.

“In the circumstances, I am only able to require that NHS Fife carry out further searches to identify all information held at the time the request was made and then issue a revised response to the requesters.

“The delays that have arisen as a result were wholly avoidable, and I would urge that all public authorities ensure their responses to FOI requests are based on information they actually hold.”

When corresponding with the SIC about the case, NHS Fife also argued the costs it obtained from the Central Legal Office would be exempt from disclosure, under FOI exemptions which protect personal information, the commercial interests of an organisation and the health and safety of individuals.

However, Mr Hamilton said he would be unlikely to be persuaded the use of these exemptions was appropriate on the basis of the evidence put forward. He advised the authority to exercise caution when considering exemptions in relation to any information which is subsequently identified.

NHS Fife has until July 14 at the latest to issue its revised responses to the three requests.

Conservative MSP Tess White said: “This is proof that a cynical culture of secrecy has taken hold at NHS Fife. Senior staff at the health board are clearly trying to hide the true costs incurred in defending the SNP’s unlawful gender policy. This is taxpayers’ money that could have gone to the NHS frontline.

“NHS Fife are taking the lead from an SNP government that’s allergic to transparency. They know they are on the wrong side of this argument.

“The information commissioner has said he’s frustrated by the health board’s handling of the requests – and so are the public. The onus is on John Swinney to instruct public bodies to be transparent and provide single-sex spaces for women in line with the law.”

A spokesperson for NHS Fife said: “NHS Fife notes the report from the Scottish Information Commissioner and intends to comply fully with its decision notice.”