Decision 054/2007 | Scottish Information Commissioner

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Decision 054/2007

Decision 054/2007 Mr A Colquhoun and Argyll & Bute Council

Request for planning related information

Applicant: Mr A Colquhoun
Authority: Argyll & Bute Council
Case No: 200600876
Decision Date: 26 March 2007

Kevin Dunion
Scottish Information Commissioner

Request for planning related information ? failure to respond to initial request within 20 working days section 10(1) ? failure to respond to request for review within 20 working days section 21(1) ? information supplied following application to the Commissioner

Relevant Statutory Provisions and other SourcesFreedom of Information (Scotland) Act 2002 sections 1(1) (General entitlement); 2(1) (Effect of exemptions); 10(1) (Time for compliance); 16(1) and (2) (Refusal of request); 17(1) and (2) (Notice that information is not held); 19 (Content of certain notices) ; 20(1), (2) and (3) (Requirement for review of refusal); 21(1) (Review by Scottish public authority); 34(1) (Investigations by Scottish public authorities).

The full text of each of these provisions is reproduced in the Appendix to this decision. The Appendix forms part of this decision.

Facts

Mr Colquhoun requested various information from Argyll & Bute Council (the Council) about inspections carried out at named premises in respect of a planning application. The Council failed to respond to the initial request but responded following a reminder from Mr Colquhoun. Mr Colquhoun was not satisfied with this response and asked the Council to review its decision. The Council failed to respond to this request for review and, following the expiry of the statutory time limit of 20 working days, Mr Colquhoun applied to the Commissioner for a decision.

Following an investigation, the Commissioner found that the Council partially failed to deal with Mr Colquhoun's request for information in accordance with Part 1 of FOISA. However, he did not require the Council to take any remedial action.

Background

1. On 3 December 2005 Mr Colquhoun wrote to the Council about a planning application in respect of a neighbouring property. Mr Colquhoun made a number of points in respect of the planning application (which concerned the erection of dog kennels). Mr Colquhoun referred to a letter that the Council had sent to a named Councillor about the planning application and visits that had been made to the property. Mr Colquhoun referred to the Freedom of Information (Scotland) Act 2002 (FOISA) and asked for:

a) The dates of all visits to the named property by an officer of the department in connection with the content of that letter;

b) The findings, conclusions and reasons for coming to such conclusions as were made following all such visits; and

c) The nature of all visits i.e. which visits were made by appointment including those which may had been made with a degree of prior warning and giving details of what degree of prior warning may have been given and which were made without any prior notice whatsoever to the occupants

2. Mr Colquhoun received no response to that letter and on 11 January 2006 he wrote again to the Council reminding it of the requests that he had made under FOISA.

3. The Council responded on 20 January 2006. The Council addressed a number of specific points that Mr Colquhoun had made and then provided information in respect of his requests under FOISA.

4. Mr Colquhoun was dissatisfied with the information supplied by the Council and on 16 February 2006 wrote again to the Council. He indicated that the information had not been supplied in its totality. Mr Colquhoun repeated his requests for information and set out the information that he considered had been excluded from the Council's response.

5. The Council responded to this letter on 13 March 2006. The Council indicated that some information "may be exempt from disclosure". The Council then clarified information about the dates of the visits and also provided information about two of the visits.

6. Mr Colquhoun remained dissatisfied with the Council's response and wrote again to the Council on 29 March 2006. He complained about the information supplied and asked the Council to provide all outstanding details.

7. Mr Colquhoun did not receive a response to this letter and on 5 May 2006 wrote to my Office, stating that he was dissatisfied with the way in which the Council had handled his requests for information and applied to the Commissioner for a decision. The case was allocated to an investigating officer.

The Investigation

8. Mr Colquhoun's application was validated by establishing that he had made a valid request for information to a Scottish public authority and had applied to the Commissioner for a decision only after asking the authority to review its response to that request. The Commissioner considers that two items of correspondence could have been considered as a request for review. In his letter of 16 February 2006 Mr Colquhoun expressed dissatisfaction with the information that had been supplied to him by the Council in that he considered it incomplete. The Commissioner considers that this letter could have been considered as a request for review. In that letter Mr Colquhoun also clarified the specific information he was seeking. In his letter of 29 March 2006 Mr Colquhoun again expressed dissatisfaction with the information that had been supplied to him. The Commissioner is therefore content that Mr Colquhoun made a valid request for review.

9. The officer formally contacted the Executive on 24 May 2006 in terms of section 49(3)(a) of FOISA, asking it to comment on the application as a whole and seeking further information for the purposes of the investigation.

10. The Council contacted this Office on 6 June 2006 asking whether it could carry out an informal review of its failure to respond to Mr Colquhoun's request for review. This was agreed and Mr Colquhoun notified.

11. The Council wrote to Mr Colquhoun on 6 July 2006 with the results of its informal review. The Council set out the chronology of the correspondence between Mr Colquhoun and the Council and provided comment on the way in which it had handled Mr Colquhoun's requests for information. The Council indicated that while some of the information had been originally exempt by virtue of section 34(1) of FOISA, the planning application had now been determined. The Council advised that the contents of the relevant file would now be supplied to Mr Colquhoun. This was done.

12. During the investigation there was correspondence between this Office, Mr Colquhoun and the Council concerning the information that had been supplied to Mr Colquhoun and whether it addressed the specific questions he had originally asked the Council. This is addressed further below.

13. Following further correspondence from the Council, Mr Colquhoun expressed his satisfaction with the information that had now been supplied to him. However, he asked the Commissioner to reach a decision on the way in which the Council had handled his requests for information.

The Commissioner's Analysis and Findings

Information falling outwith the scope of this application

14. In its submissions, the Council referred to several items of correspondence, in effort to supply a full chronology, which the Commissioner considers fall outwith the scope of this application. These are Mr Colquhoun's letter of 16 February 2006 to Councillor Walsh and the Council's letter of 14 March 2006 to Councillor Walsh. The Commissioner considers that a request to an individual Councillor is not a request to a Scottish public authority as required under section 1(1) of FOISA.

Complaints made by Mr Colquhoun

15. In his letter of application of 5 May 2006, Mr Colquhoun raised a number of matters concerning the way in which the Council handled his requests for information. These were the Council's failure to:

a) respond to his initial request of 3 December 2005

b) apologise for the delay when it did respond

c) provide a full and proper reply

d) indicate whether notes were made at certain visits

e) respond to his letter of 29 March 2006

16. Each of these points, along with the relevant Council submissions, is addressed below.

Points a) and b): Failure to respond to request of 3 December 2005 and failure to apologise for delay

17. In its letter of 6 July 2006 to Mr Colquhoun the Council acknowledged that it should have responded to Mr Colquhoun's request by 9 January 2006 and had therefore not responded within 20 working days as required by section 10(1) of FOISA. The Council also acknowledged that it had not supplied Mr Colquhoun with information about his right to seek a review from the Council and thereafter from the Commissioner.

18. While the Commissioner understands that such a delay was frustrating for Mr Colquhoun, he is unable to comment on the Council's failure to apologise for the delay when it did respond on 20 January 2006. This is not a requirement under FOISA, although it would be good practice in terms of general complaints handling. The Commissioner notes, however, that in its letter of 6 July 2006 the Council acknowledged where it had failed in its obligations under FOISA and apologised for this.

Points c) and d): Failure to provide a full and proper reply and to indicate whether notes were made at certain visits

19. The Council initially responded to Mr Colquhoun's request on 20 January 2006. In its letter of 6 July 2006 the Council indicated that this response had provided most of the information held by the Council and had outlined the planning law and procedures to be followed in this situation. However, it acknowledged that the responses did not clearly highlight that some of the information requested was not specifically recorded and therefore was not held by the Council. The Council acknowledged that the response had failed to clarify that certain information was not held by the Council in accordance with section 17 of FOISA.

20. In respect of its further letter of 13 March 2006 to Mr Colquhoun the Council submitted that this letter had clarified some of the issues raised, noted the statutory position in relation to the planning application under discussion and highlighted the fact that some of the information might be exempt since it was collected in the course of an investigation.

21. Mr Colquhoun received a further letter from the Council on 4 May 2006 which supplied a copy of the presentation given to the Area Committee concerning the planning application.

22. In its letter of 6 July 2006 to Mr Colquhoun the Council indicated that some information had been collected in the course of an investigation and therefore fell under the section 34(1) exemption. Section 34(1) of FOISA protects information if it has been held by a Scottish public authority at any time for the purposes of an investigation specified in that section (see Appendix). The Council argued that in this particular case the application was for a retrospective planning application and that it had been an ongoing situation. The Council indicated that, on balance, the public interest was best served by not supplying all of the details of the investigation at that time and thereby risking compromising the investigation. The Council acknowledged that this should have been more clearly stated at the time.

23. The Council advised, however, by that date (6 July 2006) the planning application had been determined and that, as a result, it enclosed all of the contents of the relevant file.

24. Mr Colquhoun made three requests for information which were subsequently clarified in his letter of 16 February 2006. The Commissioner has considered the Council's responses of 20 January 2006 and 13 March 2006 and while the letters provide some information about the visits to the named property the responses do not specify the information held (and not held) in respect of each visit nor do the responses specify the information which is considered exempt in respect of each question. Finally, neither response indicated the specific exemption applied by the Council nor referred to the public interest test required to be carried out in terms of section 2(1)(b) of FOISA.

25. On receipt of the relevant file as described above, Mr Colquhoun remained dissatisfied with the information. Mr Colquhoun indicated that the information supplied still did not address his specific questions and he was unclear of the cases where information had been recorded and cases where it had not. There was some discussion on this matter between this Office, the Council and Mr Colquhoun during the investigation.

26. For its part, the Council indicated that the whole file, including correspondence with Mr Colquhoun, had been supplied in an effort to be fully transparent and to provide a complete picture in context. The Council also submitted that the requests assumed that findings, conclusions and reasons for each and every site visit of every type would be recorded. This was not in fact the case.

27. The Commissioner accepts that the Council was trying to be helpful and transparent in supplying the whole file to Mr Colquhoun. Further, the Commissioner accepts that in many cases it will be helpful to supply background information to the applicant to put the information requested into context. However, the Commissioner considers that where an applicant seeks certain information and sets this out as individual questions then an authority should make very effort to respond to those specific questions. While FOISA does not require authorities to create new information, it does require an authority to indicate where it does not hold information. Therefore, in cases where an authority decides to supply an applicant with a bundle of information in response to specific question(s) then the authority should also indicate if certain information specifically requested is not held and, as a matter of good practice, direct the applicant to the individual information/documents relevant to each question asked, where necessary.

28. After further discussion with the authority the Council has now done this to the satisfaction of Mr Colquhoun.

Point e): Failure to respond to Mr Colquhoun's letter of 29 March 2006

29. In its submissions to this Office the Council indicated that it had not responded to Mr Colquhoun's letter of 29 March 2006 until 4 May 2006 when the presentation given to the Area Committee was provided to him. The Commissioner is unable to see how this item of correspondence can be considered to be a response to Mr Colquhoun's letter of 29 March given the latter's content. In any event, it is clear that the Council failed to respond within 20 working days as required by section 21(1) of FOISA.

30. In its letter of 6 July 2006 the Council indicated that Mr Colquhoun's request had highlighted the need for continual awareness training of FOISA, which was an issue being addressed by the Council across all services.

Decision

The Commissioner finds that Argyll & Bute Council (the Council) did not deal with Mr Colquhoun's request for information in accordance with the requirements of Part 1 of FOISA in that the Council failed to:

a) respond within 20 working days to Mr Colquhoun's request as required by section 10(1)

b) respond within 20 working days to Mr Colquhoun's request for review as required by section 21(1)

c) issue a notice in respect of information it did not hold in accordance with section 17(1)

d) issue a refusal notice in accordance with section 16

e) issue a notice in accordance with section 19

The Commissioner does not require the Council to take any action.

Appeal

Should either Mr Colquhoun or the Council wish to appeal against this decision, there is an appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days of receipt of this decision notice.

Margaret Keyse

Head of Investigations

26 March 2007

Appendix

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002

1 General entitlement

(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

2 Effect of exemptions

(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that ?

(a) the provision does not confer absolute exemption; and

(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.

10 Time for compliance

(1) Subject to subsections (2) and (3), a Scottish public authority receiving a request which requires it to comply with section 1(1) must comply promptly; and in any event by not later than the twentieth working day after-

(a) in a case other than that mentioned in paragraph (b), the receipt by the authority of the request; or

(b) in a case where section 1(3) applies, the receipt by it of the further information.

16 Refusal of request

(1) Subject to section 18, a Scottish public authority which, in relation to a request for information which it holds, to any extent claims that, by virtue of any provision of Part 2, the information is exempt information must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant a notice in writing (in this Act referred to as a "refusal notice") which-

(a) discloses that it holds the information;

(b) states that it so claims;

(d) states (if not otherwise apparent) why the exemption applies.

(2) Where the authority's claim is made only by virtue of a provision of Part 2 which does not confer absolute exemption, the notice must state the authority's reason for claiming that, in all the circumstances of the case, the public interest in maintaining the exemption outweighs that in disclosure of the information.

17 Notice that information is not held

(1) Where-

(a) a Scottish public authority receives a request which would require it either-

(i) to comply with section 1(1); or

(ii) to determine any question arising by virtue of paragraph (a) or (b) of section 2(1),

if it held the information to which the request relates; but

(b) the authority does not hold that information,

it must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant notice in writing that it does not hold it.

(2) Subsection (1) is subject to section 19.

19 Content of certain notices

A notice under section 9(1) or 16(1), (4) or (5) (including a refusal notice given by virtue of section 18(1)) or 17(1) must contain particulars-

(a) of the procedure provided by the authority for dealing with complaints about the handling by it of requests for information; and

(b) about the rights of application to the authority and the Commissioner conferred by sections 20(1) and 47(1).

20 Requirement for review of refusal etc.

(1) An applicant who is dissatisfied with the way in which a Scottish public authority has dealt with a request for information made under this Part of this Act may require the authority to review its actions and decisions in relation to that request.

(2) A requirement under subsection (1) is referred to in this Act as a "requirement for review".

(3) A requirement for review must-

(a) be in writing or in another form which, by reason of its having some permanency, is capable of being used for subsequent reference (as, for example, a recording made on audio or video tape);

(b) state the name of the applicant and an address for correspondence; and

(i) the request for information to which the requirement for review relates; and

(ii) the matter which gives rise to the applicant's dissatisfaction mentioned in subsection (1).

21 Review by Scottish public authority

(1) Subject to subsection (2), a Scottish public authority receiving a requirement for review must (unless that requirement is withdrawn or is as mentioned in subsection (8)) comply promptly; and in any event by not later than the twentieth working day after receipt by it of the requirement.

34 Investigations by Scottish public authorities and proceedings arising out of such investigations

(1) Information is exempt information if it has at any time been held by a Scottish public authority for the purposes of-

(a) an investigation which the authority has a duty to conduct to ascertain whether a person-

(i) should be prosecuted for an offence; or

(ii) prosecuted for an offence is guilty of it;

(b) an investigation, conducted by the authority, which in the circumstances may lead to a decision by the authority to make a report to the procurator fiscal to enable it to be determined whether criminal proceedings should be instituted; or