Decision Notice 040/2024: New Development at HMP Cornton Vale – failure to respond

Applicant: The Applicant 
Authority: Scottish Prison Service
Case Ref: 202400244

Summary

The Applicant asked the Authority for various information about the new development at HMP Cornton Vale concerning

the impact that it was having on local residents in Forth Park, Bridge of Allan.  The Applicant also wanted

information about the design of the new complex and what consideration had been given in relation to the local

community living in close proximity to the new facility.

This decision finds that the Authority failed to respond to the request and request for review within the

timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information

(Scotland) Regulations 2004 (the EIRs).  

Background

1.    The Applicant made an information request to the Authority on 10 October 2023.

2.    The Authority did not respond to the information request.

3.    On 27 November 2023, the Applicant wrote to the Authority requiring a review in respect of its failure to

respond.  He received an acknowledgement on 1 December 2023.

4.    The Applicant did not receive a response to his requirement for review.

5.    The Applicant wrote again on 1 February 2024, to chase up the response, but did not receive a reply.

6.    The Applicant wrote to the Commissioner, stating that he 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.

7.    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

8.    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 21 February 2024.

9.    The Authority did not provide the Commissioner with any submissions.

10.    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.

11.    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.

12.    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.

13.    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.

14.    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.

15.    The remainder of section 21 and regulation 16 sets out the requirements to be followed by a Scottish

public authority in carrying out a review.  As no review has been carried out in this case, the Commissioner finds

that the Authority failed to discharge these requirements: he now requires a review to be carried out in

accordance with section 21 and regulation 16.

16.    The Commissioner recommends that the Authority considers whether it would be appropriate to apologise 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.  

The Commissioner requires the Authority to respond to the Applicant’s requirement for review, by 2 May 2024.

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.

Enforcement

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of

Session that the Authority has failed to comply. The Court has the right to inquire into the matter and may deal

with the Authority as if it had committed a contempt of court.

Jennifer Ross
(Acting) Deputy Head of Enforcement

21 March 2024