Decision 133/2020: Details of COBRA meetings - failure to respond
Public authority: Scottish Ministers
Case Ref: 202001046
Summary
The Applicant asked the Scottish Ministers (the Ministers) for the title of Scottish Government Ministers, Cabinet Secretaries and health officials that attended four COBRA meetings. This decision finds that the Ministers failed to respond to the request within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA). The decision also finds that the Ministers failed to comply with the Applicant's requirement for review within the timescale set down by FOISA.
The Commissioner has ordered the Ministers to comply with the requirement for review.
Background
1. On 25 June 2020, the Applicant made an information request to the Ministers.
2. The Ministers did not respond to the information request.
3. On 30 July 2020, the Applicant wrote to the Ministers requiring a review of their failure to respond.
4. The Applicant did not receive a response to his requirement for review.
5. On 15 September 2020, the Applicant wrote to the Commissioner, stating that he was dissatisfied with the Ministers' failures to respond and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.
6. On 18 September 2020, the Ministers were notified in writing that an application had been received from the Applicant and were invited to comment on the application.
7. The Commissioner received submissions from the Ministers. These submissions are considered below.
Commissioner's analysis and findings
8. The Ministers acknowledged the Applicant's request and request for review had been received and fully accepted that the Applicant did not receive responses within the timescales allowed in FOISA.
9. The Ministers explained that due to administrative errors the Applicant's correspondence was not responded to. The initial request was allocated to an official within the Health Resilience Unit (HRU), but at that time HRU was dealing with the ongoing Covid-19 pandemic, as well as receiving an unprecedented volume of correspondence.
10. 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.
11. It is a matter of fact that the Ministers did not provide a response to the Applicant's request for information within 20 working days, so the Commissioner finds that they failed to comply with section 10(1) of FOISA.
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.
13. It is a matter of fact that the Ministers did not provide a response to the Applicant's requirement for review within 20 working days, so the Commissioner finds that they failed to comply with section 21(1) of FOISA.
14. The remainder of section 21 sets 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 Ministers failed to discharge these requirements: he now requires a review to be carried out in accordance with section 21.
15. The Ministers confirmed the Applicant's request and request for review will now be responded to and apologised for these oversights, explaining due to the high volume and pressures of other work, this was overlooked.
16. The Commissioner recommends that the Ministers consider whether it would be appropriate to apologise to the Applicant for their failure to comply.
Decision
The Commissioner finds that the Scottish Ministers (the Ministers) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2020 (FOISA) in dealing with the information request made by the Applicant. In particular, the Ministers failed to respond to the Applicant's request for information and requirement for review within the timescales laid down by sections 10(1) of 21(1) of FOISA.
The Commissioner requires the Ministers to respond to the Applicant's request for review, by 4 December 2020.
Appeal
Should either the Applicant or the Scottish Ministers 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 Scottish Ministers (the Ministers) fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Ministers have failed to comply. The Court has the right to inquire into the matter and may deal with the Ministers as if they had committed a contempt of court.
Claire Stephen
Deputy Head of Enforcement
21 October 2020
