Decision 128/2011 Ms Joanne Casserly and East Dunbartonshire Council Failure to respond to request and requirement for review Reference No: 201100879 Decision Date: 29 June 2011

Summary

This decision considers whether East Dunbartonshire Council (the Council) complied with the technical requirements of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to an information request made by Ms Casserly.

Background

1.On 4 February 2011, solicitors acting on behalf of Ms Casserly wrote to the Council requesting information about the inspection, maintenance and repair of certain pavement areas.

2.Subsequent references to correspondence to and from Ms Casserly should be read as correspondence to and from her solicitors on her behalf.

3.The Council did not respond to this request and on 22 March 2011 Ms Casserly wrote to the Council requesting a review.

4.Ms Casserly did not receive any response to this requirement for review.

5.On 12 May 2011 Ms Casserly wrote to the Commissioner, stating that she was dissatisfied with the Council's failure to respond and applying for a decision in terms of section 47(1) of FOISA.

6.The application was validated by establishing that Ms Casserly had made a 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.

7.The case was then allocated to an investigating officer.

Investigation

8.On 24 May 2011, the Council was notified in writing that an application had been received from Ms Casserly and was invited to comment on the application as required by section 49(3)(a) of FOISA.

9.The Council responded on 8 June 2011, admitting that it had failed in its duty in terms of Part 1 of FOISA in that it had not provided Ms Casserly with a response to her request within the appropriate timeframe, or carried out a review as was her statutory right.

10.Having explained the background, the Council confirmed that a full review response was being prepared and would be provided to Ms Casserly shortly.By the date of this decision, however, no response had been provided.

Commissioner's analysis and findings

11.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, subject to certain exceptions which are not relevant in this case.

12.Section 21(1) of FOISA gives public authorities a maximum of 20 working days following the date of receipt of the requirement to comply with a requirement for a review, again subject to exceptions which are not relevant to this case.

13.In the circumstances, the Commissioner concludes that the Council failed to deal with Ms Casserly's request for information or her requirement for review within the respective periods of 20 working days specified by sections 10(1) and 21(1) of FOISA.

14.Consequently, the Commissioner now requires the Council to deal with Ms Casserly's requirement for review, in accordance with the requirements of section 21 of FOISA (the relevant provisions of which are set out in the appendix to this decision).

DECISION

The Commissioner finds that East Dunbartonshire Council (the Council) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in dealing with the information request made by Ms Casserly, in particular by failing to respond to Ms Casserly's request for information and requirement for review within the respective timescales laid down by sections 10(1) and 21(1) of FOISA.

The Commissioner therefore requires the Council to comply with Ms Casserly'srequirement for review, in accordance with section 21 of FOISA, by 16 August 2011.

Appeal

Should either Ms Casserly or East Dunbartonshire 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 after the date of intimation of this decision notice.

Euan McCulloch
Deputy Head of Enforcement
29 June 2011

Appendix

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002

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

...

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.

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(4) The authority may, as respects the request for information to which the requirement relates-

(a) confirm a decision complained of, with or without such modifications as it considers appropriate;

(b) substitute for any such decision a different decision; or

(c) reach a decision, where the complaint is that no decision had been reached.

(5) Within the time allowed by subsection (1) for complying with the requirement for review, the authority must give the applicant notice in writing of what it has done under subsection (4) and a statement of its reasons for so doing.

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