5 days ago
- Health
- The Herald Scotland
What NHS Fife's FOI fight tells us about transparency
NHS Fife cited Section 38 of the Freedom of Information (Scotland) Act 2002 — the personal data exemption.
When The Herald appealed, arguing that the data was not personal, the board stood by its decision. So we took the case to the Commissioner.
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Curiously, NHS Fife tweaked its position during the investigation. It claimed the exemption extended not only to personal information but also to commercial interests under Section 33(1).
In essence, the board argued that disclosing the costs could assist Sandie Peggie's legal team, or offer other law firms insight into billing expectations for future NHS work.
NHS Fife also invoked Section 39(1) — the health and safety exemption — suggesting that releasing the information could endanger staff.
The Herald disputed all of these claims.
We argued the information sought was financial — legal fees, tribunal expenses and so on — not personal data relating to Ms Peggie, Dr Beth Upton or the board's legal team.
We pointed out that the costs do not reveal anything personal about the people involved beyond the fact that a tribunal is occurring, which is already public knowledge.
We also challenged the commercial interest exemption, given that public bodies routinely disclose legal expenditure.
The cost of the employment tribunal so far, we said, will likely consist of payments for legal service. These are sunk costs – funds already spent.
Precedent supports this: government departments and public bodies regularly publish similar disclosures.
Furthermore, law firms routinely have their public sector earnings disclosed via FOI without issue.
As for the health and safety exemption, we argued it was wholly unwarranted.
It was unclear, and the health board never quite explained, how publishing a cost breakdown could reasonably be expected to endanger anyone.
NHS Fife had suggested this exemption, presumably on the theory that making the costs public could lead to harassment of staff or other individuals involved.
There is no evidence for this. The identities and roles of the key individuals in the tribuna are already matters of public record.
If there were any risk of harassment or threats related to this case, that risk already exists independently of the cost details.
This matters. Invoking 'health and safety' in this way sets a dangerous precedent — allowing contentious costs to be concealed on the basis of hypothetical public backlash.
In the end, the Commissioner agreed.
FOISA exemptions serve important purposes — but, as NHS Fife has discovered, they are not tools to obstruct financial transparency in public bodies.
