Failure to respond to request and requirement for review

Reference No: 201302420
Decision Date: 12 November 2013

Summary

This decision considers whether the Scottish Ministers (the Ministers) complied with the technical requirements of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to an information request made by Mr Darren Rutland (Mr Rutland).

Background

1. On 7 June 2013, Mr Rutland wrote to the Ministers requesting certain specified information.

2. Although Mr Rutland received an acknowledgement to his request for information on 5 July 2013, the Ministers did not respond to his request.

3. On 14 August 2013, Mr Rutland wrote to the Ministers requesting a review of their failure to respond.

4. Mr Rutland did not receive a response to his requirement for review and on 16 October 2013 wrote to the Commissioner's Office, stating that he was dissatisfied with that failure and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.

5. The application was validated by establishing that Mr Rutland 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. The case was then allocated to an investigating officer.

Investigation

6. On 22 October 2013, the Minsters were notified in writing that an application had been received from Mr Rutland and were invited to comment on the application.

7. The Ministers responded on 5 November 2013. Their submissions are considered in the Commissioner's analysis and findings below.

Commissioner's analysis and findings

8. The Ministers recognised that a response should have been sent to Mr Rutland within the prescribed timescale, and apologised for the delay. They informed the Commissioner that a response was being finalised.

9. 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.

10. Since the Ministers did not provide a response to Mr Rutland's request for information within 20 working days, the Commissioner finds that they failed to comply with section 10(1) of FOISA.

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

12. Since the Ministers did not provide a response to Mr Rutland's requirement for review within 20 working days, the Commissioner finds that they failed to comply with section 21(1) of FOISA.

13. 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: she now requires a review to be carried out in accordance with them.

DECISION

The Commissioner finds that the Scottish Ministers (the Ministers) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in dealing with the information request made by Mr Rutland, in particular by failing to respond to Mr Rutland'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 Ministers to undertake a review in respect of Mr Rutland's request for information, in line with the requirements of section 21 of FOISA, by Friday 27 December 2013.

Appeal

Should either Mr Rutland 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.

Alison Davies
Deputy Head of Enforcement
12 November 2013

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.

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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

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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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