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Decision 043/2023

Decision 043/2023: Burial lair records – failure to respond

Authority: West Lothian Council 
Case Ref: 202300471


The Applicant asked the Authority for information about burial records and lair layouts at East Calder Churchyard.  This decision finds that the Authority failed to respond to the Applicant’s requirement for review within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA).  


1. The Applicant made an information request to the Authority on 26 February 2023.

2. The Authority responded to the information request on 9 March 2023.

3. On 12 March 2023, the Applicant wrote to the Authority requiring a review of its decision. 

4. The Applicant did not receive a response to her requirement for review.

5. The Applicant wrote to the Commissioner, stating that she was dissatisfied with the Authority’s failure to respond and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.  

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation. 


7. Section 49(3)(a) of FOISA requires the Commissioner to notify public authorities of an application and to give them an opportunity to comment. The Commissioner did this on 17 April 2023.

8. The Authority did not provide the Commissioner with any submissions.

9. 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.  This is subject to qualifications which are not relevant in this case.  

10. It is a matter of fact that the Authority did not provide a response to the Applicant’s requirement for review within 20 working days, so the Commissioner finds that it failed to comply with section 21(1) of FOISA.

11. 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 Authority failed to discharge these requirements: he now requires a review to be carried out in accordance with section 21.

12. The Commissioner recommends that the Authority considers whether it would be appropriate to apologise to the Applicant for its failure to comply.


The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in dealing with the information request made by the Applicant.  In particular, the Authority failed to respond to the Applicant’s requirement for review within the timescales laid down by section 21(1) of FOISA. The Commissioner requires the Authority to provide a response, by 30 June 2023.


Should either the Applicant or the Authority 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.


If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply. The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

Jill Walker
Freedom of Information Officer

15 May 2023