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Decision 183/2026

Decision 183/2026:  Financial position and potential disposal of the Botanic Gardens and the playing fields at Riverside in Dundee – failure to respond


Authority: University of Dundee
Case Ref: 202601059
 

Summary

The Applicant asked the Authority for information about the financial position and potential disposal of the Botanic Gardens and the playing fields at Riverside in Dundee.  This decision finds that the Authority failed to respond to the request within the timescale allowed by the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs). The decision also finds that the Authority failed to comply with the Applicant’s requirement for review within the timescale set down by FOISA and the EIRs. 

Background

  1. The Applicant made an information request to the Authority on 20 March 2026. 
  2. The Authority did not respond to the information request.
  3. On 24 April 2026, the Applicant wrote to the Authority requiring a review in respect of its failure to respond.
  4. The Applicant did not receive a response to his requirement for review.
  5. The Applicant wrote to the Commissioner on 8 June 2026, 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.   
  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

  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 16 June 2026. 
  2. The Authority did not provide the Commissioner with any submissions. 
  3. 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, 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. 
  4. 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.
  5. 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. 
  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.  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.
  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 remainder of section 21 of FOISA and regulation 16 of the EIRs 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 of FOISA/regulation 16 of the EIRs.
  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 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 carry out a review and issue a response, by 28 August 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.

 

Cal Richardson

Deputy Head of Enforcement 


14 July 2026

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