Decision 272/2025: Burial lair records – failure to respond

Authority: West Lothian Council
Case Ref: 202500578
 

Summary

The Applicant asked the Authority for information about burial lair records. 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). 

Background

1. The Applicant made an information request to the Authority on 3 January 2025.
2. The Authority responded to the information request on 9 January 2025.
3. On 9 January 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. 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.
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 24 September 2025.
8. The Commissioner received submissions from the Authority.  These submissions are considered below.
9. The Authority acknowledged that it had failed to respond to the Applicant’s requirement for review.  It explained that it had mistakenly attributed the requirement for review for the request being considered in this decision notice (reference number 101001014910) to another request submitted by the Applicant (reference number 101001014920).  As a result, the Applicant’s requirement for review relating to reference number 101001014910 was not logged and responded to.
10. The Authority confirmed that it would arrange to issue a review outcome to the Applicant, but this remains outstanding at the date of this decision notice.
11. 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.
12. 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.
13. 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.
14. 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) 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 21(1) of FOISA.  The Commissioner requires the Authority to issue a response, by 29 December 2025.

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 

10 November 2025