Decision 020/2023: Road defect Repairs – failure to respond
Authority: West Lothian Council
Case Ref: 202300240
Summary
The Applicant asked the Authority for various pieces of information relating to road defect repairs/reports for a specified road. This included road safety inspections, the road repair history, details of carriageway defects and internal/external communications. This decision finds that the Authority failed to respond to the requirement 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 30 December 2022.
2. The Authority responded to the information request on 19 January 2023.
3. On 23 January 2023, the Applicant wrote to the Authority requiring a review of its decision.
4. The Applicant did not receive a response to his requirement for review.
5. 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.
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 17 February 2023.
8. The Commissioner received submissions from the Authority on 10 March 2023.
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 acknowledged that it had not responded to the Applicant’s requirement for review in time.
11. It explained that the Applicant had contacted the Authority on 3 February 2023 with an additional request (transcript of a telephone call relating to the original request of 30 December 2022), which was processed as a new request. The Applicant had not been informed that the internal review would be delayed, pending receipt of the transcript. The Authority confirmed that this was the reason for the failure to respond to the review in time.
12. 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. 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.
13. 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.
14. The Authority responded to the Applicant’s requirement for review on 10 March 2023, so the Commissioner does not require it to take any further action in relation to the Applicant’s application.
15. The Commissioner notes that the Authority has apologised to the Applicant for the delay in carrying out a review on time.
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 requirement for review within the timescales laid down by section 21(1) of FOISA and regulation 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
Freedom of Information Officer
14 March 2023
