‘Administrative error’ lead to FoI breaches

As a campaigner against the alienation of parents involved in child custody battles, Roy Mackay has made frequent Freedom of Information requests to Scottish Borders Council over the past 18 months.

But on seven of these occasions, the council has failed to respond to the father-of-two within the statutory time limit of 20 working days.

And in each case the Scottish Information Commissioner (SIC) has concluded that the local authority failed to comply with the Freedom of Information (Scotland) Act (FOISA).

The latest of these breaches is highlighted in a decision published by the watchdog last week into a request first tendered by Mr Mackay on October 19 last year.

Mr Mackay sought information regarding candidates for the panel of legal representatives – known as curators ad litem or reporting officers – who represent the interests of children at hearings. It is the responsibility of councils to maintain such panels and pay fees to the appointed solicitors. He received a response on November 13, but, dissatisfied with its content, he wrote to the council on November 16 requesting a review of its decision and, although receiving an acknowledgement the following day, he heard nothing more within the 20-day timescale.

On December 16, he thus took the matter to SIC which formally notified the council of his complaint on January 7.

On January 20 the council explained to the watchdog that a review of the initial response given to Mr Mackay had, in fact, been carried out on November 26 but “due to an administrative error” this had not been communicated to him.

The council acknowledged it had failed to respond to the requirement for review within the timescale and said a response would now be sent to Mr Mackay.

“It is a matter of fact that the council did not provide a response within the timescale…and failed to comply with the legislation” states the SIC report, adding: “The commissioner [Rosemary Agnew] requires the council to provide a response to Mr Mackay’s requirement for review by March 9, 2015.”

It warns that Ms Agnew has the right to certify any failure to comply to the Court of Session which may “deal with the council as if it had committed a contempt of court”.

A trawl of all of the SIC decisions involving SBC reveals that on five previous occasions the council has failed to respond within the permitted timescale to Mr Mackay.

The dates of those decisions were June 28, 2013, November 14, 2013, March 6, 2014, July 15, 2014, and July 25, 2014.

Another decision, dated March 20, 2014, relates to three separate requests from Mr Mackay for information relating to appointments. SBC failed to respond to two of those requests. On the third occasion the council provided information following a requirement for review.