Decision Notice 021/2024: Inchgreen Dry Dock – failure to respond
Applicant: The Applicant
Authority: Inverclyde Council
Case Ref: 202400021
Summary
The Applicant asked the Authority for information relating to the award of public funds to repair Inchgreen Dry
Dock. 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 and the EIRs.
Background
1. The Applicant made an information request to the Authority on 20 October 2023.
2. The Authority did not respond to the information request.
3. On 28 November 2023, the Applicant wrote to the Authority in respect of its failure to respond.
4. The Applicant did not receive a response to his requirement for review.
5. On 5 January 2024, 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 11 January 2024.
8. The Commissioner received submissions from the Authority on 2 February 2024. These submissions are
considered below.
9. The Authority accepted that it had failed to respond to the request and requirement for review within the
timescales set down by FOISA.
10. The Authority apologised that its processes and procedures had failed on this occasion, and stated that it
would also apologise to the Applicant when it responded to his requirement for review.
11. It is apparent from the terms of the requests that at least some of the information caught by them will be
environmental information as defined by regulation 2(1) of the EIRs. In Decision 218/2007, 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 the EIRs.
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 of the EIRs.
16. The remainder of section 21 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.
17. 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 1 April 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.
Cal Richardson
Deputy Head of Enforcement
14 February 2024
