Decision 111/2025: Gadloch drainage systems– failure to respond

 
Authority: East Dunbartonshire Council 
Case Ref: 202500554

Summary

The Applicant asked the Authority for information about drainage outfall from the Gadloch to the Park Burn.  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) and the Environmental Information (Scotland) Regulations 2004 (the EIRs). 

Background

1. The Applicant made an information request to the Authority on 23 January 2025.
2. The Authority responded to the information request on 20 February 2025.
3. On 20 and 24 February 2025, the Applicant wrote to the Authority requiring a review of its decision.
4. The Applicant did not receive a response to his requirement for review.
5. On 15 April 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 16 April 2025.
8. The Commissioner received submissions from the Authority.  These submissions are considered below.
9. The Authority accepted that it did not respond to the requirement for review within the timescale set down by the legislation. The delay was attributed to an administrative error.
10. The Authority also submitted that it is currently dealing with an increased volume of internal reviews, all from a single source and on this same subject matter, but that this should not have led to a delay in responding to the Applicant’s requirement for review.
11. 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.
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.  The same timescale is laid down by regulation 16(4) of the EIRs.
13. 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.
14. 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.
15. The Authority responded to the Applicant’s requirement for review on 18 April 2025, so the Commissioner does not require it to take any further action in relation to the Applicant’s application.
16. 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 timescale laid down by section 10(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.

Jill Walker

Deputy Head of Enforcement 

      08 May 2025