Mrs Margaret Scott and East Dunbartonshire Council

Factual and Procedural Background

On 28 April 2014, the Plaintiff requested from Company A a report prepared by a specialist adaptations contractor concerning remedial works to be carried out in the Plaintiff’s bathroom. Company A informed the Plaintiff that it did not hold the requested report but provided some related information to assist. Dissatisfied with the response, the Plaintiff applied to the Commissioner for a decision. An initial decision found that Company A breached its obligations under the Freedom of Information (Scotland) Act 2002 (FOISA) by failing to provide a review outcome within the statutory time frame, and Company A was required to provide such a review.

Company A subsequently provided a review outcome, confirming it did not hold the report but provided a copy of a purchase order related to the works. The Plaintiff remained dissatisfied, particularly regarding a breakdown of costs related to an invoice. The Plaintiff applied again to the Commissioner for a decision. The Commissioner conducted an investigation, including requesting Company A to justify its position and provide evidence of searches for the requested information.

Legal Issues Presented

1. Whether Company A held the information requested by the Plaintiff under section 1(1) of FOISA.
2. Whether Company A complied with its duty under section 17(1) of FOISA to notify the Plaintiff that it did not hold the information.
3. Whether Company A complied with its duty under section 15(1) of FOISA to provide reasonable advice and assistance to the Plaintiff in relation to her information request.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff requested a detailed report from the adaptations contractor regarding bathroom remedial works, including every aspect of the recommendations.
• The Plaintiff was dissatisfied that Company A did not provide the requested report and specifically sought a breakdown of costs related to a £3,500 invoice.
• The Plaintiff referred to Company A’s Terms and Conditions for contractors, emphasizing provisions requiring detailed estimates from contractors.

Company A's Arguments

• Company A maintained that it did not hold the requested report, supported by internal communications and confirmation from the sub-contractor that no written report was completed.
• The works were instructed via a Sub-Contractor Instruction (CSI) and purchase order, which contained estimated costs and brief descriptions but no detailed report.
• The specification referenced in the purchase order was a standard template used generally for such works and was not unique or detailed for this specific case; the original specification was no longer held.
• Company A explained that detailed estimates are required only at the tender stage, not for every individual job during the contract period.
• Company A provided the purchase order to the Plaintiff as a gesture of assistance despite not holding the requested report.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Commissioner assessed the scope and thoroughness of the searches conducted by Company A and found them adequate and proportionate. Evidence included internal emails and confirmation from the sub-contractor that no written report was produced. The Commissioner concluded, on the balance of probabilities, that Company A did not hold the information requested at the time the request was received, thus justifying the notice under section 17(1) of FOISA. However, the Commissioner found that Company A failed to provide sufficient explanation and context to the Plaintiff regarding the processes followed in instructing the works and the nature of the information held. This failure constituted non-compliance with the duty to provide reasonable advice and assistance under section 15(1) of FOISA. The Commissioner noted that had Company A provided a fuller explanation, the Plaintiff might have better understood the position and possibly avoided the need for a decision application.

Holding and Implications

The Commissioner held that Company A partially complied with Part 1 of FOISA in responding to the Plaintiff’s request. Specifically, the Commissioner found that Company A was correct to notify the Plaintiff under section 17(1) that it did not hold the requested information, constituting compliance in that respect. However, Company A failed to comply with section 15(1) by not providing reasonable advice and assistance to the Plaintiff.

No remedial action was required from Company A in relation to the failure to provide advice and assistance. The decision clarified the obligations of public authorities in responding to information requests but did not establish new precedent beyond the application of existing statutory duties. Both parties were informed of their right to appeal to the Court of Session on a point of law within 42 days of the decision.