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Decision 088/2025

   Decision 088/25: Ironside Farrar Report – failure to respond


Authority: Midlothian Council
Case Ref: 202500425
 

Summary

The Applicant asked the Authority for a copy of a specified report exploring the re-opening of steps leading down to Ironmills Bridge, Dalkeith.  This decision finds that the Authority failed to respond to the 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 15 December 2024.
  2. The Authority responded to the information request on 15 January 2025.
  3. On 17 January 2025, 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 on 19 March 2025, 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.  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.

  7. The Authority subsequently responded to the Applicant’s request for review during the course of the Commissioner’s investigation, and the Applicant confirmed that she still required a decision in respect of its original failure to respond.

     

Investigation

  1. 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 25 March 2025.
  2. The Commissioner received submissions from the Authority on 10 April 2025.  These submissions are considered below.
  3. The Authority accepted that it had failed to respond to the Applicant’s requirement for review within the timescale allowed under FOISA and the EIRs.
  4. The Authority explained that the delay in responding was the result of internal staffing issues.
  5. 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[1],  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.
  6. 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.  The same timescale is laid down by regulation 16(4) of the EIRs.
  7. 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.
  8. The Authority responded to the Applicant’s requirement for review on 26 March 2025, so the Commissioner does not require it to take any further action in relation to the Applicant’s application.

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

     

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 requirement for review within the timescales laid down by section 21(1) of FOISA and regulation 16(4) of the EIRs.  Given that the Authority has now responded to the Applicant’s requirement for review, he does not require the Authority to take any action. 

 

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.

 

 

Nick Murton

Freedom of Information Officer

11 April 2025