Decision Notice 018/2024: Road Surfacing work – failure to respond
Applicant: The Applicant
Authority: City of Edinburgh Council
Case Ref:202301452
Summary
The Applicant asked the Authority for information about road surfacing work on a specific part of Lanark Road.
This decision finds that the Authority failed to respond to the request within the timescale allowed by the
Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004
(the EIRs). The decision also finds that the Authority failed to comply with the Applicant’s requirement for
review within the timescale set down by FOISA/the EIRs.
Background
1. The Applicant made an information request to the Authority on 30 August 2023.
2. The Authority did not respond to the information request.
3. On 28 September 2023, the Applicant wrote to the Authority in respect of its failure to respond.
4. The Applicant did not receive a response to her requirement for review.
5. On 19 November 2023, the Applicant wrote to the Commissioner, stating that she was dissatisfied with the
Authority’s failure to respond and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.
The enforcement provisions of FOISA apply to the enforcement of the EIRs, subject to specified modifications – see
regulation 17.
6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the
power to carry out an investigation.
Investigation
7. Section 49(3)(a) of FOISA requires the Commissioner to notify public authorities of an application and to
give them an opportunity to comment. The Commissioner did this on 22 November 2023.
8. The Commissioner received submissions from the Authority. These submissions are considered below.
9. It is apparent from the terms of the request that at least some of the information caught by it will be
environmental information as defined by regulation 2(1) of the EIRs. In Decision 218/2007 Transport Scotland ,
the Commissioner confirmed at paragraph 51 that where environmental information is concerned, there are two
separate statutory frameworks for access to that information and, in terms of the legislation, an authority is
required to consider the request under both FOISA and EIRs.
10. The Authority accepted that it had failed to respond to the Applicant’s information request and
requirement for review within the timescales allowed by FOISA and the EIRs.
11. It explained that the request had not been recognised as an “information request”, rather it had been
treated as a “business as usual” request and forwarded to the “Transport Design Customer Care” mailbox. It
confirmed that the staff who are responsible for that mailbox have been reminded of the Authority’s statutory
duties regarding information requests, and the correct procedure on how to handle them under FOISA.
12. Section 10(1) of FOISA gives Scottish public authorities a maximum of 20 working days following the date
of receipt of the request to comply with a request for information. This is subject to qualifications which are
not relevant in this case. The same timescale is laid down by regulation 5(2)(a) of the EIRs.
13. It is a matter of fact that the Authority did not provide a response to the Applicant’s request for
information within 20 working days, so the Commissioner finds that it failed to comply with section 10(1) of FOISA
and regulation 5(2)(a) of the EIRs.
14. Section 21(1) of FOISA gives Scottish public authorities a maximum of 20 working days following the date
of receipt of the requirement to comply with a requirement for review. Again, this is subject to qualifications
which are not relevant in this case. The same timescale is laid down by regulation 16(4) of the EIRs.
15. It is a matter of fact that the Authority did not provide a response to the Applicant’s requirement for
review within 20 working days, so the Commissioner finds that it failed to comply with section 21(1) of FOISA and
regulation 16(4) of the EIRs.
16. The remainder of section 21 and regulation 16 set out the requirements to be followed by a Scottish public
authority in carrying out a review.
17. The Authority responded to the Applicant’s requirement for review on 29 November 2023, so the Commissioner
does not require it to take any further action in relation to the Applicant’s application.
18. The Commissioner notes that the Authority has apologised to the Applicant for its failure to comply.
Decision
The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland)
Act 2002 (FOISA) and with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in dealing with the
information request made by the Applicant. In particular, the Authority failed to respond to the Applicant’s
request for information and requirement for review within the timescales laid down by sections 10(1) and 21(1) of
FOISA and regulations 5(2) and 16(4) of the EIRs. Given that the Authority has now responded to the Applicant’s
requirement for review, he does not require the Authority to take any action.
Appeal
Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal
to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of
intimation of this decision.
Jill Walker
Deputy Head of Enforcement
5 February 2024
