NHS Fife rebuked by watchdog over Sandie Peggie FOI failures

The Herald Scotland

28-05-2025

In a scathing decision, David Hamilton said he was 'frustrated' by the board's handling of the requests, accusing NHS Fife of causing unnecessary delays.
The case centres on requests submitted by three applicants — including The Herald — seeking details of costs incurred by NHS Fife in the case taken by Ms Peggie, a nurse at Victoria Hospital in Kirkcaldy.
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NHS Fife refused to release the information and rejected an initial appeal, prompting an application to the Commissioner.
In his investigation, Mr Hamilton found that the board did not appear to have undertaken any searches in response to the request for information.
Instead, the board had sought figures from its legal advisers at the Central Legal Office (CLO).
However, they only obtained those figures were after The Herald and others had made requests for a review.
The Commissioner said he "cannot... be satisfied that the Authority did not hold any information falling within the scope of the requests at the date it received them.
"Even allowing for whatever relevant arrangements it may have with the CLO, he cannot accept the Authority reaching a conclusion on what it holds, in the circumstances, wholly without recourse to its own records."
"The Commissioner is frustrated – a feeling no doubt shared by the Applicants – that the Authority's poor handling of these requests has placed him in a position where he is effectively limited to requiring it to carry out adequate, proportionate searches for the information requested, reach a decision on the basis of those searches, and notify the Applicants of the outcome (all in terms of section 21 of FOISA).
"This unnecessary delay hampers the applicants with their information rights, and reflects poorly on the Authority."
He also rejected NHS Fife's arguments for withholding the later-obtained data.
The board had claimed that releasing costs could prejudice commercial interests, but Mr Hamilton said this was "speculative" and the board had lacked "detail of the kind that would be required to substantiate the exemption."
He also noted that legal fees paid by a public body, not by the staff involved and were not inherently private.
"The costs are the Authority's, not theirs. The costs do not appear to say anything of
significance about either individual, nor would the disclosure of the costs add in any
meaningful sense to what is."
NHS Fife refused to release details of costs to The Herald (Image: Damian Shields) Mr Hamilton said the board had also failed to prove any "credible link" that releasing the information would create a "risk of harm to the health and safety of any individual."
In his decision, the Commissioner ordered NHS Fife "to carry out adequate, proportionate searches for the information, reach a decision on the basis of those searches and notify the Applicants (separately) of the outcome (all in terms of section 21 of FOISA), by Monday 14 July 2025. "
Failure to comply, he warned, could see the matter referred to the Court of Session.
Ms Peggie, an A&E nurse at Victoria Hospital, is suing her employer after being suspended following a confrontation with Dr Upton.
On Christmas Eve 2023, she experienced a sudden heavy period and was concerned she had bled through her scrubs. When she entered the changing room and saw Dr Beth Upton, a trans woman, she said in her view, the medic was a man and should not be in the room.
Dr Upton made a formal complaint shortly afterwards. Ms Peggie was placed on 'special leave' in late December 2023 and suspended in January 2024, pending an investigation into 'alleged unwanted behaviours towards another member of NHS Fife staff'.
Her suspension was lifted in April, but the disciplinary process remains ongoing.
Ms Peggie's suspension was lifted in April of that year, but she was still subject to the disciplinary process.
She then lodged legal proceedings in the employment tribunal against NHS Fife and Dr Upton, 'alleging multiple breaches of the Equality Act 2010".
The tribunal was initially scheduled to conclude in February after ten days but has been adjourned until 16 July. It is expected to sit for a further 11 days, in part due to NHS Fife's failure to disclose documentation as ordered by the tribunal judge.
There are also questions around whether the board complied with legal obligations by allowing Dr Upton — who does not hold a gender recognition certificate — to use a single-sex facility.
Under the Equality Act 2010, public bodies are required to assess and review proposed new or revised policies or practices. The Herald has previously reported that NHS Fife did not carry out an impact assessment when allowing Dr Upton to use the female changing room.
NHS Fife has also come under pressure to concede the case following the Supreme Court ruling that the terms 'man' and 'woman' in the Equality Act refer to biological sex, not acquired gender.
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Maya Forstater, CEO of human rights charity Sex Matters said: "The Scottish Information Commissioner has delivered a stinging rebuke to NHS Fife for its failure to disclose the costs associated with its defence in Sandie Peggie's tribunal.
"This is the latest episode of a disgraceful saga, in which NHS Fife first attempted to grant Dr Upton anonymity and then tried to restrict public access to the tribunal. Now it has tried and failed to hide the costs of this whole shameful process, as it continues to try to escape public scrutiny."
Scottish Conservative equalities spokesperson 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.'
NHS Fife has been approached for comment.
More to follow...