Decision 071/2016: Mr B and East Dunbartonshire Council

Planning application: failure to respond within statutory timescales

Reference No: 201600263
Decision Date: 22 March 2016

Summary

On 6 December 2015, Mr B asked East Dunbartonshire Council (the Council) for information about a planning application. This decision finds that the Council failed to respond to the request within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA)/the Environmental Information (Scotland) Regulations 2004 (the EIRs). The decision also finds that the Council failed to comply with Mr B's requirement for review within the timescale set down by FOISA/the EIRs.

The Commissioner has ordered the Council to comply with the requirement for review.

Background

Date

Action

6 December 2015

Mr B made an information request to the Council.

10 December 2015

Although the Council provided Mr B with an acknowledgement, it did not respond to the information request.

11 January 2016

Mr B wrote to the Council requiring a review of its failure to respond.

11 January 2016

Again, although Mr B received an acknowledgment (an automated one) he did not receive a response to his requirement for review.

11 February 2016

Mr B wrote to the Commissioner's Office, stating that he was dissatisfied with the Council's failures 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.

3 March 2016

The Council was notified in writing that an application had been received from Mr B and was invited to comment on the application.

The Council did not provide the Commissioner with any submissions.

Commissioner's analysis and findings

1. 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 Professor A D Hawkins and Transport Scotland[1], 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.

2. 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.

3. It is a matter of fact that the Council did not provide a response to Mr B'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.

4. 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.

5. It is a matter of fact that the Council did not provide a response to Mr B'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.

6. 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. As no review has been carried out in this case, the Commissioner finds that the Council failed to discharge these requirements: she now requires a review to be carried out in accordance with section 21 or regulation 16, as appropriate.

7. The Commissioner recommends that the Council considers whether it would be appropriate to apologise to Mr B for its failure to comply.

Decision

The Commissioner finds that East Dunbartonshire Council (the Council) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA)/the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by Mr B. In particular, the Council failed to respond to Mr B's request for information and requirement for review within the timescales laid down by sections 10(1) and 21(1) of FOISA/regulation 5(2) and 16(4) of the EIRs.

The Commissioner requires the Council to provide Mr B with a response to his requirement for review, by Friday 6 May 2016.

Appeal

Should either Mr B or the Council 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 Council fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Council has failed to comply. The Court has the right to inquire into the matter and may deal with the Council as if it had committed a contempt of court.

Alison Davies
Deputy Head of Enforcement

22 March 2016


Link to PDF of Decision 071/2016 (173 KB)

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