Background

Commissioner's analysis and findings

1. 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 Professor A D Hawkins and Transport Scotland[1], 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.

2. 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. The same timescale is laid down by regulation 5(2)(a) of the EIRs.

3. The Council responded to Mr M on 15 February 2018. As the Council acknowledges, this response was made on a "business as usual" basis, without giving Mr M information on his rights. In addition, while it appears to explain the Council's position in respect of the issues raised in both requests, it is not clear how the 15 February email is responding to either request in terms of FOISA or the EIRs, i.e. as a request for recorded information. In the circumstances, the Commissioner is not satisfied that it can be construed as a response under FOISA or the EIRs.

4. The Commissioner finds, therefore, that the Council did not provide a response to Mr M's requests for information within 20 working days, so the Commissioner finds that it failed to comply with section 10(1) of FOISA and regulation 5(2)(a) of the EIRs.

5. 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.

6. The Council has acknowledged that it did not recognise Mr M's email of 26 March 2018 as a requirement for review in relation to its response of 15 February 2018. The Commissioner is satisfied that Mr M's dissatisfaction with that response (in relation to the two requests specified above) is sufficiently apparent for it to qualify as a requirement for review in terms of section 20 of FOISA and regulation 16 of the EIRs.

7. It is a matter of fact that the Council did not provide a response to Mr M's requirement for review within 20 working days, so the Commissioner finds that the Council failed to comply with section 21(1) of FOISA and regulation 16(4) of the EIRs.

8. 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. As no review has been carried out in this case, the Commissioner finds that the Council failed to discharge these requirements: he now requires a review to be carried out in accordance with section 21 and regulation 16.

9. The Commissioner acknowledges, as the Council has suggested, that Mr M's information requests and requirement for review could have been more clearly set apart from his other correspondence with the Council about the subject matter of the requests. With this in mind, he welcomes the Council's proposal to recommend to Mr M that future requests are directed to the centralised team it maintains for that purpose: the Commissioner would also suggest to Mr M that he follows that recommendation.

Appeal

Should either Mr M or the 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 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.

Euan McCulloch
Deputy Head of Enforcement

2 July 2018