Decision Notice 102/2024: Planning application - failure to respond
Applicant: The Applicant
Authority: East Dunbartonshire Council
Case Ref: 202400435
Summary
The Applicant asked the Authority for information about a planning application. 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 8 January 2024.
2. The Authority responded to the information request on 1 February 2024.
3. On 21 February 2024, 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 9 April 2024.
8. The Commissioner received submissions from the Authority. These submissions are considered below.
9. The Authority accepts that it did not respond to the requirement for review, explaining that that it
should have been passed to the officer dealing with the Applicant’s earlier request for clarification of the
initial response.
10. 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.
11. 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.
12. 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.
13. 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.
14. The Authority responded to the Applicant’s requirement for review on 20 May 2024, so the Commissioner does
not require it to take any further action in relation to the Applicant’s application.
15. 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
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.
Jennifer Ross
(Acting) Deputy Head of Enforcement
22 May 2024
