Mr K McFadyen and Blue Suite Medical Practice

Factual and Procedural Background

On 7 February 2012, the Appellant submitted a request to Company A (a medical practice) for information regarding the number of warning letters issued to patients over the last twelve months and the last five years. Company A responded on 29 February 2012, stating that providing exact figures would be disproportionately difficult and declined to provide the requested information. The Appellant requested an internal review on 9 March 2012. Company A issued the outcome of this review on 13 March 2012, providing estimated figures but clarifying that it did not maintain precise statistics on warning letters. Dissatisfied with this response, the Appellant applied to the Scottish Information Commissioner for a decision on 19 March 2012. The Commissioner validated the application and initiated an investigation, requesting submissions from both parties. Company A relied on the excessive cost provisions under the Freedom of Information (Scotland) Act 2002 (FOISA) to justify refusal.

Legal Issues Presented

1. Whether Company A was entitled to refuse the information request under section 12(1) of FOISA on the basis that the cost of compliance would exceed the prescribed limit.
2. Whether Company A fulfilled its duty under section 15 of FOISA to provide advice and assistance to the Appellant.
3. Whether Company A complied with the procedural requirements for refusal notices under sections 16(4) and 19 of FOISA.

Arguments of the Parties

Appellant's Arguments

• The Appellant sought exact figures on the number of warning letters issued by Company A over specified periods.
• The Appellant was dissatisfied with the refusal and the estimated figures provided, applying to the Commissioner for a decision.

Company A's Arguments

• Company A argued that retrieving the requested information would exceed the cost limit prescribed by FOISA, relying on section 12(1).
• It explained that warning letters were stored as scanned documents within individual patient electronic records without searchable identifiers, requiring manual review of each file.
• Estimated time to review each patient file was five minutes, with approximately 7,600 patients, resulting in an estimated cost of over £5,000 based on staff hourly rates.
• Company A contended that providing information for one year would be as onerous as for five years.
• Company A attempted to provide estimated figures in its review response to fulfill its duty under section 15 of FOISA.
• Company A acknowledged that its refusal notice did not comply fully with the procedural requirements of sections 16(4) and 19 of FOISA.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Commissioner first confirmed that Company A qualified as a Scottish public authority under FOISA, as it provided primary medical services under a general medical services contract. The Commissioner accepted that the requested information related to the provision of those services and thus fell within FOISA’s scope.

The Commissioner examined Company A’s reliance on section 12(1), which permits refusal where the estimated cost of compliance exceeds the prescribed limit (£600). Company A’s detailed explanation of its record-keeping practices demonstrated that warning letters were not electronically searchable but stored as scanned documents in individual patient files. This necessitated a manual review of approximately 7,600 files, estimated to take 633 hours at a low staff hourly rate, resulting in a cost far exceeding the statutory limit.

Even allowing for a reduced time estimate per file, the cost would remain above the threshold, leading the Commissioner to accept that Company A was entitled to refuse the request under section 12(1).

Regarding the duty to provide advice and assistance under section 15, the Commissioner found that Company A reasonably attempted to assist by providing estimated figures and explained why narrowing the request was impractical given the nature of the records and the cost implications.

However, the Commissioner identified procedural failings in Company A’s refusal notice, which did not explicitly state the reliance on section 12(1) nor include required particulars about complaint procedures and appeal rights as mandated by sections 16(4) and 19 of FOISA. Despite these failures, the Commissioner did not require remedial action given the overall outcome.

Holding and Implications

The Commissioner’s decision was as follows:

Company A was permitted to refuse the Appellant’s information request under section 12(1) of FOISA due to excessive cost of compliance.

Company A partially complied with FOISA by providing estimated figures and attempting to assist the Appellant. However, it failed to comply fully with the procedural requirements for refusal notices under sections 16(4) and 19.

The Commissioner did not require Company A to take any corrective action for these procedural failures. The decision clarified the application of cost limits under FOISA and the extent of duties to assist and notify applicants but did not establish new legal precedent beyond the statutory framework.