If you are fully aware of the Freedom of Information Act requirements, you will be aware that your reply should have contained particulars about the rights of application both to your own authority and to the Scottish information commissioner conferred by section 20[1] on review of refusal and 47 [1] on application for decision by the commissioner. Please arrange a review.
At 6.37 the following arrived:
I acknowledge your request for a review of my decision to withhold information under Section 38 (Personal Information) of the Freedom of Information (Scotland) Act 2002. As required by the Act we will respond within 20 working days.
This review will be undertaken by an officer not involved in my decision.
If you are unhappy with the outcome of the review you have the right to appeal to the information commissioner.
On 6 January the following arrived:
Please find attached the outcome of the recent FOI review as requested. Please note that our reviewer, Mrs. Lorraine Hall – Director of Human Resources and Support Services, sets out in her letter information regarding your right of redress to the Scottish information commissioner.
With reference to the specifics of the FOI request, the disclosure of salaries and pension information, whilst the Board does hold the information requested, I uphold Mr Kenton’s decision of 21 December that the ‘information requested is exempt under the Freedom of Information Act as it is personal information covered by the Data Protection Act. Individuals have the right to exercise individual choice about whether to disclose their salary or not’.
On 21 January 2010 we sent the following to the Scottish information commissioner:
We are writing formally to appeal against the decision of NHS Shetland to withhold information in its possession about remuneration of executives in the financial year 2007-08.
We enclose a complete file of correspondence with NHS Shetland. Our position is that this information should be in the public domain, that it is the wish of the Auditor General for Scotland that it should be in the public domain, and that we do not accept that data protection should be used as an excuse for withholding it. The Prime Minister himself said in a recent statement that he wished information about the remuneration of senior executives in the public sector to be fully available and indeed intended to publish details of the highest earners.
The Scottish Government has recently posted on its website the salary of Sandra Laurenson, the chief executive of NHS Shetland. We alerted the Scottish Government to the refusal of NHS Shetland to publish this information, and note with interest that the information in question remains on the Scottish Government’s website.
In the current climate of acute and growing concern over the level of managerial pay in the Scottish public sector, it is our submission that it is completely unacceptable for such information to be withheld.
We await an adjudication of our appeal from the Scottish Information Commissioner
NHS Orkney
On 23 October 2009, SR made a Freedom of Information request for the remuneration, including pension details where applicable, of six executive and three non-executive directors whose consent to disclose in the annual accounts of NHS Orkney for 2007-08 was withheld. On 18 November, we received the following reply:
The formal answer is no. This information has been withheld under Section 38(1)(b) and 38(2)(a)(i) of the Freedom of Information (Scotland) Act 2002 as this is personal data relating to individual employees and to disclose it would breach the first data protection principle.
On 21 December, we exercised our right to request a review of this decision:
In response to the board’s response to the Scottish Review’s Freedom of Information request for the remuneration, including pensions where applicable, of six executive members and three non-executive members for the year ended 31 March 2008, I am writing to request a review.
The members in question are:
Sarah Taylor, director of public health, salary and pension details withheld
Iain White, interim director of finance, salary and pension details withheld
Peter Baxter, interim medical director, salary and pension details withheld
Fiona Smith, director of human resources, salary and pension details withheld
Rhoda Walker, acting director of AHP and nursing, salary and pension details withheld
Rosaleen Beattie, medical director, salary and pension details withheld
Jenny Dewar, chair, remuneration withheld
Kath Pye, employee director, remuneration withheld
Jim Robertson, non-executive member, remuneration withheld
Since your decision to refuse my request, I have sought the opinion of the Auditor General for Scotland and of Audit Scotland. Their opinion is: ‘We would expect and support full disclosure of the remuneration, including pensions, of senior executives and non-executives. This is in line with HM Treasury guidelines…However, in Scotland, executives and non-executives in public bodies have the right to withhold their consent for disclosure and neither the Auditor General nor Audit Scotland can compel them.’
We sought the opinion of the Scottish information commissioner on the specific issue of non-executive members withholding information about their remuneration. The commissioner’s opinion is that ‘as the information is available at the appointment stage, information about the remuneration of non-executives in post would be likely to be available on request’.
Our ground for review is based on the opinions of the Auditor General, of Audit Scotland, and of the Scottish information commissioner. We again formally request you to release the information.
Later the same day, we received the following reply:
I have forwarded your request to Mr Roos as requested. As you are no doubt aware, the information in the response was consistent with the approved annual accounts for 2007/08 as published on our website.
On 24 December we received the following:
Thank you for correspondence with NHS Orkney regarding executive salaries. NHS Orkney acknowledges that the non-disclosure of salaries in 2007-2008 lacked transparency. The situation was remedied in 2008-2009 when 16 out of a possible 18 directors disclosed their pay. We are hoping to achieve 100% disclosure in 2009-2010.
I have attached the 2008-2009 remuneration data to demonstrate both the remuneration levels and the improved transparency. This information was in the public domain in June 2009 when it formed part of the board’s annual report and will soon be available via our website. In relation to your specific question about non-executive remuneration at 31 March 2008. This information is already in the public domain via the Scotland’s Health on the Web (SHOW website). NHS Orkney non-executive directors were paid £7,104 per annum at this date and the non-executive chair was paid £26,364 per annum.
In view of your acknowledgement of lack of transparency in the past, and your hope to achieve full transparency in the financial year 2009-10, we are not proceeding further for the moment.
NHS Fife
We sent the following email on 21 December 2009:
I am writing with a Freedom of Information request for the remuneration, including pension details, of the following executive whose consent to disclose in the annual accounts of NHS Fife for 2007-08 was withheld:
R Pettigrew, director of finance, salary and pension details withheld
I have sought the opinion of the Auditor General for Scotland and of Audit Scotland. Their opinion is: ‘We would expect and support full disclosure of the remuneration, including pensions, of senior executives and non executives. This is in line with HM Treasury guidelines…However, in Scotland, executives and non-executives in public bodies have the right to withhold their consent for disclosure and neither the Auditor General nor Audit Scotland can compel them.’
Notwithstanding the lack of compulsory powers, it is the clear wish of the Auditor General for Scotland and of Audit Scotland that there should be full disclosure.
Later the same day, we received the following acknowledgement:
Thank you for your Freedom of Information request which we received today 21 December 2009. I can confirm that it is currently being processed and that you will receive a response to your request by Thursday, 21 January 2010.
Please allow postage time if applicable.
On 22 January, we received the following response:
Thank you for your Freedom of Information request received on 21 December 2009 regarding the above.
You wrote asking for the remuneration including pension details of Mr
R Pettigrew, the now retired director of finance of NHS Fife. You drew my attention to the opinions of the Auditor General for Scotland and of Audit Scotland that they would support full disclosure. Both also acknowledge that individuals have the right, however, to withhold consent.
In the light of your request we asked Mr Pettigrew to agree to disclose his remuneration. He replied that he wished to continue to exercise his right of non-disclosure. He has indicated that he is prepared for us to disclose the salary range for his post. In the last financial year in which Mr Pettigrew was employed his post attracted the salary range £73,560 to £100,255.
I trust you will find this information useful.
Before deciding on our next step in this case, we await the adjudication of the Scottish information commissioner in the case of NHS Shetland
NHS Ayrshire and Arran
We sent the following email on 21 December 2009:
I am writing with a Freedom of Information request for the pension details of the following executive whose consent to disclose in the annual accounts of Ayrshire and Arran Health Board for 2007-08 was withheld:
W Hatton, chief executive, pension details withheld
I have sought the opinion of the Auditor General for Scotland and of Audit Scotland. Their opinion is: ‘We would expect and support full disclosure of the remuneration, including pensions, of senior executives and non executives. This is in line with HM Treasury guidelines…However, in Scotland, executives and non-executives in public bodies have the right to withhold their consent for disclosure and neither the Auditor General nor Audit Scotland can compel them.’
Notwithstanding the lack of compulsory powers, it is the clear wish of the Auditor General for Scotland and of Audit Scotland that there should be full disclosure.
On 21 January we received the following:
Please find attached – WYH – 200110.pdf, which sets out these details as they would have been reported in the 2007-08 accounts had they not been withheld.
The information requested was duly enclosed
NHS Western Isles
We sent the following email on 21 December 2009:
I am writing with a Freedom of Information request for the remuneration, including pension details, of the following executive whose consent to disclose in the annual accounts of NHS Western Isles for 2007-08 was withheld:
Sheila Scott, director of public health, salary and pension details withheld
I have sought the opinion of the Auditor General for Scotland and of Audit Scotland. Their opinion is: ‘We would expect and support full disclosure of the remuneration, including pensions, of senior executives and non-executives. This is in line with HM Treasury guidelines…However, in Scotland, executives and non-executives in public bodies have the right to withhold their consent for disclosure and neither the Auditor General nor Audit Scotland can compel them.’
Notwithstanding the lack of compulsory powers, it is the clear wish of the Auditor General for Scotland and of Audit Scotland that there should be full disclosure.
On 10 February, we received the following reply:
Further to your recent enquiry under the Freedom of Information Act, please find our response below. Please accept our apologies for the delay in responding.
Response:
Salary:
74,504-100,446 (Consultant’s Contract pay scale)
*Please note, this figure does not include:
Discretionary Points
On call allowances
Pension Contribution:
8.5% (individual)
14% (employer)
Benefits in kind:
£8,000
Before deciding on our next step in this case, we await the adjudication of the Scottish information commissioner in the case of NHS Shetland
NHS Forth Valley
We sent the following email on 21 December 2009:
I am writing with a Freedom of Information request for the pension details of the following executives whose consent to disclose in the annual accounts of Forth Valley NHS Board for 2007-08 was withheld:
Fiona MacKenzie, chief executive, pension details withheld
Gareth Davies, medical director, pension details withheld
Fiona Ramsay, director of finance, pension details withheld
Anne Maree Wallace, director of public health, pension details withheld
Margaret Duffy, other executive, pension details withheld
Helen Kelly, other executive, pension details withheld
Angela Wallace, other executive, pension details withheld
I have sought the opinion of the Auditor General for Scotland and of Audit Scotland. Their opinion is: ‘We would expect and support full disclosure of the remuneration, including pensions, of senior executives and non executives. This is in line with HM Treasury guidelines…However, in Scotland, executives and non-executives in public bodies have the right to withhold their consent for disclosure and neither the Auditor General nor Audit Scotland can compel them’.
Notwithstanding the lack of compulsory powers, it is the clear wish of the Auditor General for Scotland and of Audit Scotland that there should be full disclosure.
On 7 January 2010 we received the following reply:
All employees of NHS Forth Valley, including the above executives, are members of the National NHS Pension Scheme, details of the scheme can be found at www.SPPA.gov.uk. The exemption that we consider applies is set out below:
Section 25 – Information otherwise accessible
Information which the applicant can reasonably obtain other than by requesting it under section 1 (1) is exempt information.
We contacted the Scottish Public Pensions Agency on 12 February for clarification and received the following reply later that day:
We receive information from all NHS employers by way of annual returns for pension purposes and this contains individual details of pensionable
earnings for all employees together with other data we require.
We would not release personal information about an individual’s pensionable income nor would we release similar information about an individual’s pension. Actually we have never been asked for such information.
If you asked me for numbers involved, etc then that would be fine but for Forth Valley to suggest that we would be able to release personal data is quite wrong.
I would also make the point that pensionable salary does not generally equal a person’s income.
I am afraid therefore that in my view Forth Valley is the correct source for the information you seek, in the same way that we would publish our annual accounts which contains details of management salaries.
We then emailed NHS Forth Valley:
Thank you for your response to our Freedom of Information request. Our request was rejected on the grounds that it was information otherwise accessible – in your view from the Scottish Public Pensions Agency. We contacted the SPPA this morning and received the following reply: (reply as above).
You are therefore mistaken in your view that the information is ‘otherwise accessible’ and we now wish a review of your decision.
NHS Lanarkshire
The pension details of the chief executive, Dr T Davison and the director of public health, Dr D Moir, were withheld from the annual accounts for 2007-08 because consent to disclose was refused. SR has yet to file a freedom of information request in this case
Get the
Scottish Review
in your inbox
free of charge
The Library
Recent articles
[click here]
01.04.10
Issue no 229
Why
Alton
Towers?
Kenneth Roy
on the Lanarkshire
school bus accident
[click here]
Mistakes
and other
errors
Robin Downie
on the language of
Purcell and the Pope
[click here]
Why don’t we
mind our
languages?
R D Kernohan
on the Scottish
reluctance to learn
foreign languages
[click here]
When friends
fall out
Alan Fisher
on the frosty relations
between America
and Israel
[click here]
Deer
The April poem
by Gerard Rochford
[click here]
SR’s freedom of
information campaign
[click here]
Next edition: Tuesday