Decision Notice 108/2024: Drainage proposal – failure to respond
Applicant: The Applicant
Authority: East Dunbartonshire Council
Case Ref: 202400207
Summary
The Applicant asked the Authority for information about the Road Construction Consent relating to a drainage
proposal. This decision finds that the Authority failed to respond to the Applicant’s requirement for review
within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA)/the Environmental
Information (Scotland) Regulations 2004 (the EIRs).
Background
1. The Applicant made an information request to the Authority on 25 September 2023, which was clarified on 5
October 2023.
2. The Authority responded to the information request on 15 December 2023.
3. On 9 January 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 on 8 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 8 April 2024.
8. The Commissioner received submissions from the Authority.
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 accepted that it failed to respond to the Applicant’s requirement for review within the
timescale allowed by FOISA/the EIRs.
11. The Authority explained that a review response had been drafted, but due to an error it had not been
finalised and issued to the Applicant.
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 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 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.
Jill Walker
Deputy Head of Enforcement
23 May 2024
