Decision Notice 031/2024: Air Quality – failure to respond
Applicant: The Applicant
Authority: West Lothian Council
Case Ref: 202400160
Summary
The Applicant asked the Authority for air quality monitoring reports/communications in relation to air quality in
temporary school cabins. 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 21 November 2023.
2. The Authority responded to the information request on 12 December 2023.
3. On 13 December 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 on 6 February 2024, 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 6 February 2024.
8. The Commissioner received submissions from the Authority. These submissions are considered below.
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 the EIRs.
10. The Authority accepted that it had failed to respond to the Applicant’s requirement for review within the
timescale allowed.
11. The Authority explained that the delay in issuing a review to the Applicant was due to the necessity to
prioritise other business and service resource pressures. It confirmed that a review would be arranged and a
response issued to the Applicant, including an apology to the Applicant. This has not been done yet.
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 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 by the
Authority in accordance with section 21 and regulation 16.
15. The Commissioner notes that the Authority intends 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
requirement for review within the timescales laid down by section 21(1) of FOISA and regulation 16(4) of the EIRs.
The Commissioner requires the Authority to issue a response to the Applicant by 29 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.
Colin MacFadyen
Freedom of Information Officer
14 March 2024
