Formal investigations
Sections 8 and 9: Initiating a formal investigation
17.Sections 8 and 9 deal with setting up a formal investigation. The Commissioner can look into matters without setting up a formal investigation (see section 8(3)), but by initiating a formal investigation into an issue the Commissioner is able to exercise the information-gathering power that section 13 provides and can impose a duty to respond to recommendations made at the end of the investigation under section 11.
18.Section 8(1) provides that a formal investigation begins when the Commissioner makes its terms of reference publicly available. Section 9 sets out minimum requirements for what must be included in an investigation’s terms of reference, and requires that before finalising an investigation’s terms of reference the Commissioner must at least consult the Commissioner’s advisory group (see section 16).
19.As soon as practicable after a formal investigation begins, section 8(2) requires the Commissioner to take reasonable steps to bring the investigation to the attention of anyone upon whom the Commissioner anticipates imposing a requirement to supply information under section 13 during the course of the investigation or a requirement to respond to a recommendation under section 11 at the end of the investigation.
Section 10: Investigation report
20.Subsection (1) provides that, following the conclusion of an investigation under section 8, the Commissioner must prepare a report on the investigation and lay a copy of it before the Scottish Parliament.
21.The report must set out the Commissioner’s findings in relation to the issue which has been investigated and the reasons for them, together with the Commissioner’s recommendations in light of those findings (subsection (2)).
22.A copy of the report must be given to each person to whom a recommendation in the report is addressed (subsection (3)).
23.Recommendations may be addressed to any person the Commissioner considers appropriate, even if they were not identified in the Commissioner’s terms of reference for an investigation as a person to whom the Commissioner was expecting to address a recommendation (subsection (4)(a)). This applies even if the Commissioner did not take steps to bring the investigation’s terms of reference to that person’s attention in accordance with section 8(3)(b).
Section 11: Requirement to respond to report
24.If a report contains a recommendation which is addressed to a person and states the period within which the Commissioner expects a response to the recommendation, that person must respond to the recommendation (subsection (1)).
25.A person will have complied with a requirement to respond to a recommendation if they have given the Commissioner a response in writing before the expiry of the period for response specified in the report (subsection (2)).
26.Subsection (3) provides that a written response to a recommendation is a document which sets out what actions or intended actions the person proposes to take to give effect to the recommendation and if the person intends to take no action, the reasons for that.
27.The Commissioner may make publicly available (in whatever way the Commissioner considers appropriate) a person’s written response to a recommendation and may publicise a person’s failure to respond.
