Decision 054/2026Beaw Field Wind Farm’s activity – failure to respond

Authority: Shetland Islands Council
Case Ref: 202502177
 

Summary

The Applicant asked the Authority for information about the Beaw Field Wind Farm’s activity.  This decision finds that the Authority failed to respond to the request and requirement for review within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs).  
 

Background

1. The Applicant made an information request to the Authority on 16 August 2025. 
2. The Authority acknowledged receipt of the Applicant’s information request on 18 August 2025, however, it did not respond to the information request.
3. On 1 October 2025, the Applicant wrote to the Authority requiring a review in respect of its failure to respond.
4. Although the Authority acknowledged the requirement for review and apologised for the delay on 8 October 2025, the Applicant did not receive a response to his requirement for review.
5. On 1 December 2025, the Applicant wrote to the Commissioner, stating that he 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.  The enforcement provisions of FOISA apply to the enforcement of the EIRs, subject to specified modifications – see regulation 17. 
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. 

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 9 December 2025. 
8. The Commissioner received submissions from the Authority on 22 December 2025.  These submissions are considered below. 
9. The Authority acknowledged that it had failed to respond to the Applicant’s request for information and requirement for review within the statutory timescales and as of the date of the submissions.  On 19 March 2026, during a telephone call with the investigating officer, the Authority confirmed that it had still not issued a review. 
10. In its submissions, the Authority stated that, at the time the request for information was received, it was impossible to issue a response on time due to: (a) volume of workload; and (b) the lack of staff to whom the task of preparing a response to the Applicant could have been delegated.
11. The Authority stated that it would request the Commissioner, when determining the Applicant’s appeal, to take account of these mitigatory factors.  It further acknowledged that compliance with the statutory obligations set out in the EIRs could not be excused on the basis of competing priorities or excessively busy workloads.
12. 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 Transport Scotland,  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.
13. 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.
14. It is a matter of fact that the Authority did not provide a response to the Applicant’s request 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.
15. 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.
16. 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 and regulation 16(4) of the EIRs.
17. 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 Authority failed to discharge these requirements: he now requires a review to be carried out in accordance with section 21/regulation 16.
18. The Commissioner recommends that the Authority considers whether it would be appropriate to apologise to the Applicant for its failure to comply.
19. The Commissioner notes the Authority’s submissions on the pressures it was experiencing at the time it received the request.  He would remind authorities that under paragraph 1.1.1 of the Scottish Ministers' Code of Practice on the discharge of functions by Scottish public authorities under FOISA and the Environmental Information (Scotland) Regulations 2004  (the Section 60 Code), FOI should be recognised as a specific statutory corporate function within an authority.  As such, it should receive the necessary levels of organisational support at both strategic and operational levels, as well as sufficient resource, to ensure compliance with Scotland’s access to information regimes. 
20. The Commissioner would also remind authorities that under paragraph 1.4.1 of the Code, Authorities should have in place robust arrangements to ensure that staff absence, whether planned or unplanned, does not affect their ability to respond to requests for information, and requests for review, within statutory timescales.

Decision 

The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) and with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in dealing with the information request made by the Applicant.  In particular, the Authority failed to respond to the Applicant’s request for information and requirement for review within the timescales laid down by sections 10(1) and 21(1) of FOISA and regulations 5(2) and 16(4) of the EIRs. 

The Commissioner requires the Authority to issue a response, by 5 May 2026.

Appeal

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.

Enforcement 

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.

Jennifer Ross

Deputy Head of Enforcement 

20 March 2026

1. ^

   https://www.foi.scot/decision-2182007

2. ^

   https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2016/12/foi-eir-section-60-code-of-practice/documents/foi-section-60-code-practice-pdf/foi-section-60-code-practice-pdf/govscot%3Adocument/FOI%2B-%2Bsection%2B60%2Bcode%2Bof%2Bpractice.pdf