Decision Notice 049/2024: Response submitted to national stoma survey
Authority: NHS Dumfries and Galloway
Case Ref: 202200699
Summary
The Applicant asked the Authority for information relating to a response it had submitted to a data
survey that had been circulated to stoma nurses via the Scottish Stoma Nurse Group (SSNG).
The Authority informed the Applicant it did not hold the information. The Commissioner
investigated and was satisfied that the Authority did not hold the information requested.
Background
1. On 12 May 2022, the Applicant made a request for information to the Authority. Among other
things, the Applicant requested the response submitted by the Authority’s Board Area to a
data survey circulated to stoma nurses via the chair of SSNG in around 2018-2019.
2. The Authority responded on 26 May 2022 with a notice, under section 17(1) of FOISA, that it
did not hold the information requested.
3. On 27 May 2022, the Applicant wrote to the Authority, requesting a review of its decision.
The Applicant stated that he was dissatisfied with the decision. The Applicant considered
“with a very high degree of certainty” that the Authority had submitted a response to the
survey, as survey responses from all mainland NHS Boards were referenced in a national
report. The Applicant also noted that the Authority had a duty, under section 15 of FOISA, to
provide him with advice and assistance in relation to his request.
4. The Authority notified the Applicant of the outcome of its review on 16 June 2022, fully
upholding its original decision. The Authority explained that it had not retained a hard or
saved copy of its response following submission.
5. On 17 June 2022, the Applicant wrote to the Commissioner, applying for a decision in terms
of section 47(1) of FOISA. The Applicant stated that he was dissatisfied with the outcome of
the Authority’s review because:
- he had received information from a separate information request, which showed that the Authority had submitted a response to the survey
- he did not accept that the response was not recorded, discussed further or shared with other staff
- he did not accept that no-one had knowledge of where the response was sent or to whom
- the Authority had not provided him with advice and assistance in relation to his request.
Investigation
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. On 1 September 2022, and in line with section 49(3)(a) of FOISA, the Commissioner gave
the Authority notice of the application in writing and invited its comments. The Authority
provided comments.
8. The case was subsequently allocated to an investigating officer.
Commissioner’s analysis and findings
9. The Commissioner has considered all of the submissions made to him by the Applicant and
the Authority.
Section 17(1) – Notice that information is not held
10. Section 1(1) of FOISA provides that a person who requests information from a Scottish
public authority which holds it is entitled to be given that information by the authority, subject
to qualifications which, by virtue of section 1(6) of FOISA, allow Scottish public authorities to
withhold information or charge a fee for it. The qualifications contained in section 1(6) are
not applicable in this case.
11. The information to be given is that held by the authority at the time the request is received,
as defined in section 1(4) of FOISA. This is not necessarily to be equated with information
an applicant believes the authority should hold. If no such information is held by the
authority, section 17(1) of FOISA requires it to give the applicant notice in writing to that
effect.
12. The standard of proof to determine whether a Scottish public authority holds information is
the civil standard of the balance of probabilities. In determining where the balance lies, the
Commissioner must first of all consider the interpretation and scope of the request and
thereafter the quality, thoroughness and results of the searches carried out by the public
authority.
13. The Commissioner also considers, where appropriate, any reason offered by the public
authority to explain why it does not hold the information. Ultimately, however, the
Commissioner’s role is to determine what relevant recorded information is actually held by
the public authority (or was, at the time it received the request).
The Authority’s submissions
14. The Authority explained that it has one stoma nurse, who it contacted to help provide a
response to the Applicant’s request. The Authority stated that the stoma nurse undertook a
full review of her emails for the submitted survey and of the Authority’s shared drive for a
saved copy of the submitted survey.
15. The Authority explained that searches had been undertaken prior to its initial response to the
Applicant and again prior to its review outcome; neither search yielded a copy of the
Authority’s data survey response.
16. The Authority provided a copy of its Health and Administration Records Management Policy
detailing the retention and destruction periods for each type of document. The Authority
explained that there was no requirement for the completed survey to be retained after it had
been submitted.
17. The Authority also explained that the stoma nurse did not recall there being any information
included within the completed survey that could not be shared in response to an information
request, so if it held the survey, then it would have provided it in response to the request.
The Applicant's submissions
18. The Applicant explained that he had received information in response to a separate
information request to a different public authority that suggested that the Authority had
submitted a response to a national survey.
19. The Applicant did not accept that the response had not been discussed at any further
meetings, that the contents had not been shared by email with other staff within the Authority
or that no-one knows where the response was sent or to whom.
20. The Applicant therefore did not accept that the Authority had no record of the response
submitted.
21. The Applicant also explained that he considered the Authority had failed in its duty, under
section 15 of FOISA, to provide advice and assistance to him to in relation to his request.
The Commissioner's view
22. Given the explanations and submissions provided, the Commissioner accepts that the
Authority took adequate and proportionate steps in the circumstances to establish if the
information was held and he is satisfied, on balance, that it does not (and did not, on receipt
of the request) hold the information requested by the Applicant.
23. The Commissioner considers that the Authority’s searches were reasonable in the sense of
who it asked to carry out the searches and the locations searched; he finds that they would
be capable of locating the information requested.
24. While the Applicant believed and expected the specified information to be held by the
Authority, the Commissioner is satisfied that this was not the case.
25. The Commissioner notes that the Authority accepts that it did submit a response to the data
survey, but he recognises that it was under no obligation, under its Health and Administration
Records Management Policy, to retain the response after it had been submitted. Whether a
public authority should hold information which it does not hold is not a matter for the
Commissioner to decide.
26. The Commissioner therefore concludes that the Authority was correct to give the Applicant
notice, in terms of section 17(1) of FOISA, that it did not hold the information requested.
Section 15 – Duty to advise and assist
27. Section 15(1) of FOISA requires a Scottish public authority, so far as reasonable to expect it
to do so, to provide advice and assistance to a person who has made, or proposes to make,
a request for information to it.
28. In this case, the Applicant expressed general dissatisfaction that the Authority had not
provided him with appropriate advice and assistance.
29. The Authority did not provide the Applicant with any advice or assistance, in either its initial
response or review outcome, on where the information requested might otherwise be
obtained.
30. As the Authority acknowledged that it did submit a response to the data survey, the
Commissioner considers that the Authority should have advised the Applicant where he
might otherwise be able to obtain the information requested.
31. While the Applicant appeared to have been aware of some public authorities that might be in
possession of the Authority’s data survey response, the Commissioner nevertheless
considers that the Authority should have directed him to those authorities itself (and to any
others that might hold the information requested).
32. The Commissioner therefore finds that the Authority failed to comply with the duty under
section 15(1) of FOISA to provide advice and assistance.
33. During the investigation, the Applicant confirmed that he has made requests to other relevant
public authorities for the information requested in this case. In the circumstances, the
Commissioner does not require the Authority to take further action in respect of its failure to
comply with its duty under section 15(1) of FOISA.
Decision
The Commissioner finds that the Authority partially complied with Part 1 of the Freedom of
Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the
Applicant.
The Commissioner finds that the Authority was correct to notify the Applicant that it did not hold the
requested information, but that it failed to comply with its duty under section 15(1) of FOISA to
provide him with advice and assistance.
However, as rehearsed earlier, the Commissioner does not, in the circumstances, require the
Authority to take any action in respect of this failure.
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.
David Hamilton
Scottish Information Commissioner
28 March 2024
Appendix 1: Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1 General entitlement
(1) A person who requests information from a Scottish public authority which holds it is
entitled to be given it by the authority.
(2) The person who makes such a request is in this Part and in Parts 2 and 7 referred to
as the “applicant.”
…
(4) The information to be given by the authority is that held by it at the time the request is
received, except that, subject to subsection (5), any amendment or deletion which
would have been made, regardless of the receipt of the request, between that time and
the time it gives the information may not be made before the information is given.
…
15 Duty to provide advice and assistance
(1) A Scottish public authority must, so far as it is reasonable to expect it to do so, provide
advice and assistance to a person who proposes to make, or has made, a request for
information to it.
…
17 Notice that information is not held
(1) Where-
(a) a Scottish public authority receives a request which would require it either-
(i) to comply with section 1(1); or
(ii) to determine any question arising by virtue of paragraph (a) or (b) of section
2(1),
if it held the information to which the request relates; but
(b) the authority does not hold that information,
it must, within the time allowed by or by virtue of section 10 for complying with the
request, give the applicant notice in writing that it does not hold it.
…
47 Application for decision by Commissioner
(1) A person who is dissatisfied with -
(a) a notice under section 21(5) or (9); or
(b) the failure of a Scottish public authority to which a requirement for review was
made to give such a notice.
may make application to the Commissioner for a decision whether, in any respect
specified in that application, the request for information to which the requirement
relates has been dealt with in accordance with Part 1 of this Act.
(2) An application under subsection (1) must -
(a) be in writing or in another form which, by reason of its having some permanency,
is capable of being used for subsequent reference (as, for example, a recording
made on audio or video tape);
(b) state the name of the applicant and an address for correspondence; and
(c) specify –
(i) the request for information to which the requirement for review relates;
(ii) the matter which was specified under sub-paragraph (ii) of section 20(3)(c);
and
(iii) the matter which gives rise to the dissatisfaction mentioned in subsection
(1).