Fighting Fife With FOI
The Information Commissioner in Scotland, David Hamilton, has told NHS Fife to make its 2024 Trans Policy available to the public under the Freedom of Information Act. NHS Fife has thus far refused to release the document, citing a number of exemptions, all of which have been rejected by the Commissioner.
NHS Fife has until 13 August to comply with Hamilton’s instruction. The decision comes six months after the Scottish ICO issued a level 4 Intervention (the most serious) over NHS Fife’s handling of FOI requests relating to the amount of public money spent defending the Peggie tribunal.
That Peggie tribunal (which is being appealed) did an awful lot to expose the extent to which the NHS has been gripped by gender ideology. Disinfectant is the best disinfectant, but sunlight helps.
Mark of the Bumba
In July last year, during the first phase of witness evidence at the Sandie Peggie employment tribunal, an interested member of the public (let’s call him Simon) began to scrutinise some of NHS Fife’s published documents. One of the documents Simon found was the minutes of an NHS Fife Equality and Human Rights Strategy Group meeting, held on 1 Feb 2024. This was just over a month after Sandie Peggie’s infamous encounter with a male doctor in a female changing room. The minutes were attached to the agenda for a Staff Governance meeting, held in March 2024.
During the February meeting, Isla Bumba, NHS Fife’s Equality and Human Rights lead (who claims not to know what sex she is) asked for “feedback, comments and approval” of her “NHS Fife Wide Trans, Non-binary and Gender Non-conforming Patient’s Policy”. She told the meeting that the Terrence Higgins Trust (THT) had “reviewed and approved” the policy “from a Trans-community perspective”.
The timing of the document and the manner of its approval piqued Simon’s interest. For one thing, the Terrence Higgins Trust’s expertise is primarily focused on destigmatising HIV and preventing its spread. The THT is an avowed trans ally organisation, but again, primarily through the lens of sexual health.
Simon wrote to NHS Fife, asking it to disclose a copy of Bumba’s Trans Policy, plus “communications between the Authority and the THT related to this and other possible trans policies, including, but not limited to, those affecting staff”. He also asked for any subsequent or replacement policies and “any written policy, guidance or other instructions with regard to trans staff members’ rights to access sex/gender segregated spaces that were in force from January 2023 until the date of receipt of this request”, which was 26 Feb 2025.
At the time, NHS Fife’s Information Governance & Security Lead was Matt Valenti. Valenti had ultimate responsibility for handling Freedom of Information (FOI) requests. He is a Unison union rep and helped found NHS Fife’s LGBT+ Network. Valenti’s twitter profile looks like this:
Valenti is up front about his politics. Here is a cartoon he retweeted whilst the Peggie tribunal was active:
Despite Valenti’s enthusiasm for trans rights, NHS Fife was less keen on revealing its trans policies, nor how they came about.
Absolute Tosh
Simon’s first FOI request got a response on 27 March 2025 from Kellyanne Tosh, an Information Governance and Security Advisor on the NHS Fife FOI team. Tosh accepted Bumba’s draft Trans Policy was reviewed at a meeting in 2024, but said it was “not progressed”.
By way of a short lecture (“Public interest is not necessarily the same as what interests the public”), Tosh refused to disclose the document and any communication around it, “as this may prejudice/be detrimental.”
Tosh did not explain what disclosure might prejudice or be detrimental toward, but she did supply NHS Scotland’s current “Gender Transitioning Guide“, which was in the process of being adopted by all NHS Trusts across Scotland. The Guide apparently helps “managers and employees understand and support colleagues who are considering, undergoing, or have undergone a gender reassignment process” by using language about sex “assigned at birth” and the legally confused statement: “no one should disclose information about someone’s gender reassignment without their explicit written consent. Such a disclosure may be a criminal offence.”
The Guide makes for interesting reading (particularly regarding its policy on changing rooms), but Simon wanted Isla Bumba’s Trans Policy and more information about the people who helped shape it. He asked for an internal review, stating: “Whether or not NHS Fife considers it in the public’s interest, as opposed to of interest to the public, isn’t relevant when the public has the right to be provided that information. Also, whether or not NHS Fife considers that the information “may prejudice/be detrimental” isn’t relevant if the public has the right to access that information. Prejudice what exactly? Be detrimental to whom exactly? Detrimental to NHS Fife? How?”
The Freedom of Information Act guidance on SICO’s website states: “The aim of a review is to allow [an] authority to take a fresh look at its response to an information request, to confirm the decision (with or without modifications) or, if appropriate, to substitute a different decision. The review procedure must therefore be fair and impartial and allow decision makers to look at the request afresh… It is good practice for the reviewer to be a person who did not respond to or advise on the original request (where possible or practicable).”
More Tosh?
On 10 April 2025, an unnamed “NHS Fife Information Governance and Security Advisor” (possibly Kellyanne Tosh wearing a fake beard and sunglasses) wrote to Simon, telling him “NHS Fife has completed our review… and our decision is to uphold the original response.”
The unnamed IG&S Advisor said NHS Fife was relying on two exemptions – “Information otherwise accessible/available”, ie the information Simon was seeking was already publicly available, (which it wasn’t), and “Personal Information”, ie the information he was seeking contained people’s personal information (which most of it didn’t) and therefore couldn’t be disclosed. The rest of the email was copied and pasted from the first refusal (including the “Public interest is not necessarily the same as what interests the public” line) and the same Gender Transitioning Guide was attached as before.
Simon escalated his complaint to the Scottish Information Commissioner’s Office (SICO), which wrote to NHS Fife, asking them to explain a little more about the thinking behind their decision, and how it related to their obligations under law. SICO also requested sight of the documents NHS Fife were refusing to disclose.
Prompted by this, NHS Fife decided to throw a few more exemptions at the wall, including “Health and Safety” (arguing disclosure would “endanger the physical or mental health or the safety of an individual”) and “Prejudice to effective conduct of public affairs”, finally finishing the sentence it had previously left dangling by asserting that disclosing the documents “may prejudice/be detrimental to the ongoing case” (my italics) – presumably a reference to the still extant Sandie Peggie tribunal.
Documents were disclosed by NHS Fife to SICO in two stages – the Trans Policy and emails relating to it as requested, and then, after the SICO realised there was more information NHS Fife was holding, it took receipt of “two versions of the draft policy, one sent by the Authority to the THT and one returned to the Authority with comments added by the THT. Two further attachments, with
additional relevant reference information belonging to another third-party organisation, were also attached.”
Simon 3 v 0 NHS Fife
After reviewing all the submissions made by Simon and NHS Fife, the Information Commissioner issued a decision nation on 29 June this year. David Hamilton agreed the information was disclosable, and none of NHS Fife’s proposed exemptions applied. He also took a dim view of their review, noting “There was no evidence in the review outcome provided to the Applicant [Simon] that a fresh look had been taken, or that the reviewer was a person who had not been involved in the initial response. As the applicant highlighted, the text of the response and review appeared to be the same.” NHS Fife, when asked to explain itself, “provided no comment or submissions”.
Hamilton ruled that NHS Fife “failed to comply” with the FOI Act Scotland in three ways – its response to Simon, by withholding information it had a duty disclose and by failing to properly search for all relevant material. The Commissioner has ordered NHS Fife to disclose the documents Simon requested by 13 August and carry out a proper search for other relevant material.
I asked Simon what he thought. He said, “I honestly find the whole thing so confusing. They’re supposed to be a hospital. Why are they doing any of this?”
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