Background

Commissioner's analysis and findings

1. 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.

2. It is a matter of fact that the Council did not provide a response to Mr Gourlay's request for information within 20 working days, so the Commissioner finds that it failed to comply with section 10(1) of FOISA.

3. The Commissioner notes Mr Gourlay made a request for review on 27 December 2017. It follows that the Council's response should have been in terms of section 21(4)(c) of FOISA (i.e. the Council was obliged to reach a decision, where the complaint is that no decision had been reached). However, the response provided to Mr Gourlay on 24 January 2018 was not made in terms of section 21(4)(c), and invited Mr Gourlay to seek a review if dissatisfied. Mr Gourlay should have been advised of his right to apply to the Commissioner, rather than invited to submit a second requirement for review (section 21(10) of FOISA).

4. The Commissioner finds that the Council failed to respond to Mr Gourlay's request for review in terms of section 21(4)(c) and failed to provide Mr Gourlay with particulars about his right of application to the Commissioner and of his appeal rights in terms of sections 47(1) and 56 of FOISA, as required by section 21(10).

5. Following the Council's response of 24 January 2018, Mr Gourlay asked for another review on 21 February 2018. The Council carried out a review on 21 March 2018, finding that the request was vexatious. However, the Commissioner has found that Mr Gourlay's request for review of 21 February 2018 was not valid, in terms of section 20(3)(c) of FOISA, in that it did not specify his reasons for dissatisfaction, thus making the review outcome invalid too.

6. The Council accepts that the procedure it followed was incorrect and has issued instructions to avoid any repeat.

7. As noted above, the Council has significantly altered its views on Mr Gourlay's information request. Initially, it found that the information he asked for should be withheld, but now considers that the request is vexatious. Given that the Council's current view of the request differs markedly from the position upon which its initial response was based, the Commissioner requires the Council to issue another review response to Mr Gourlay (in relation to his valid request for review of 27 December 2017) which reflects its revised position, with appropriate advice and assistance. Mr Gourlay can then apply to the Commissioner for a decision, if dissatisfied with the decision from the Council.

Appeal

Should either Mr Gourlay or West Dunbartonshire Council 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 West Dunbartonshire Council (the Council) fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Council has failed to comply. The Court has the right to inquire into the matter and may deal with the Council as if it had committed a contempt of court.

Alison Davies
Deputy Head of Enforcement

4 June 2018