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Decision 094/2022

Decision 094/2022: Internal communications between specified Council departments for the period 4 November 21 to 11 February 2022 – failure to respond

Authority: Clackmannanshire Council 
Case Ref: 202200548

Summary

The Applicants asked the Authority for all emails between the Council’s planning committee members, planning and building control departments and a named legal department employee, covering the period 4 November 2021 to 11 February 2022.  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 Applicants’ requirement for review within the timescale set down by FOISA and the EIRs.

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

Background

1. The Applicants made an information request to the Authority on 11 February 2022.

2. The Authority responded to the information request on 14 March 2022.

3. On 14 March 2022, the Applicants wrote to the Authority requiring a review of its decision.

4. The Applicants did not receive a response to their requirement for review.

5. On 11 May 2022, the Applicants wrote to the Commissioner, stating that they were 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 27 May 2022. 

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

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. 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.

11. It is a matter of fact that the Authority did not provide a response to the Applicants’ 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.

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.  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.

13. It is a matter of fact that the Authority did not provide a response to the Applicants’ 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 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 Authority failed to discharge these requirements: he now requires a review to be carried out in accordance with section 21 and regulation 16.

15. The Commissioner recommends that the Authority considers whether it would be appropriate to apologise to the Applicants 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 Applicants.  In particular, the Authority failed to respond to the Applicants’ 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 carry out a review by 4 November 2022.

Appeal

Should either the Applicants 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.

Euan McCulloch
Deputy Head of Enforcement 

20 September 2022