Dear Highland Council,

The Council's Access officer declared in a communication with Gairloch Community Council that 'privacy' under access legislation can be claimed by those living at Rua Reidh lighthouse over land which he terms 'excluded'. He defines 'excluded' land as land which the residents 'own and manage'.

Please let me have the information you hold which demonstrates, clearly, whether the Council still agrees with and adheres to those definitions or if the council has resiled from the position set out by the Access Officer.

If the Council has relsiled from the position set out by the Access officer, please let me have the information you hold which clearly sets out your current position which replaces the Access officer's former definitions.

If you do not understand this request please give to me your help and assistance, as is your duty under FOI legislation, so that I can obtain the information I am entitled to.

Yours faithfully,

Guy Kerry

Guy Kerry left an annotation ()

The access officer's definitions of excluded land is an ultra vires definition. He defines 'excluded' land as land 'owned and managed' by those claiming privacy under access legislation. In my FOI requests and complaints the council will not address the point I have to make which is that the land surrounding the light is NOT owned and managed by those claiming privacy. The land surrounding the lighthouse is under the statutory management of the Melvaig crofters, not the residents and thus the access officer's definitions of 'owned and managed' cannot bite here. The council have claimed ignorance of the situation and claimed it is not important and otherwise have claimed not to know anything about ownership and management of this land or they ignore the point. I seek clarification of their current position before proceeding to the Scottish Public Service Ombudsman.

Highland Council

Case Ref: HC0226-2762  

Dear Guy Kerry, 

We acknowledge receipt of your request for information under the
FOI legislation received on 12/12/2017.

Subject: 

Rua Reidh Lighthouse excluded land

Request Detail:

Dear Highland Council,

The Council's Access officer declared in a communication with Gairloch
Community Council that 'privacy' under access legislation can be claimed
by those living at Rua Reidh lighthouse over land which he terms
'excluded'. He defines 'excluded' land as land which the residents 'own
and manage'.

Please let me have the information you hold which demonstrates, clearly,
whether the Council still agrees with and adheres to those definitions or
if the council has resiled from the position set out by the Access
Officer.

If the Council has relsiled from the position set out by the Access
officer, please let me have the information you hold which clearly sets
out your current position which replaces the Access officer's former
definitions.

If you do not understand this request please give to me your help and
assistance, as is your duty under FOI legislation, so that I can obtain
the information I am entitled to.

Yours faithfully,

Guy Kerry

The Highland Council will endeavour to respond within the legislative time
scale of 20 working days from date of receipt unless further clarification
of your request is required.

Further information on response times can be found at:
[1]http://www.itspublicknowledge.info/YourR...

Yours Sincerely,

The Highland Council

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Unless related to the business of The Highland Council, the views or
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nor does this e-mail form part of any contract unless so stated.
Mura h-eil na beachdan a tha air an cur an cèill sa phost-d seo a'
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fhèin a chuir air falbh e a tha iad, is chan eil iad an-còmhnaidh a'
riochdachadh beachdan na Comhairle, no buidhnean buntainneach, agus chan
eil am post-d seo na phàirt de chunnradh sam bith mura h-eil sin air
innse.

Listening * Open * Valuing * Improving * Supporting * Partnering * Delivering
Èisteachd * Fosgailte * Luach * Leasachadh * Taic * Com-pàirteachas *
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D&I FOI, Highland Council

Dear Mr Kerry

 

Request for Information under Environmental Information (Scotland)
Regulations 2004

 

We refer to your request for information on 12 December 2017. You
requested the following information:-

 

The Council's Access officer declared in a communication with Gairloch
Community Council that 'privacy' under access legislation can be claimed
by those living at Rua Reidh lighthouse over land which he terms
'excluded'. He defines 'excluded' land as land which the residents 'own
and manage'. Please let me have the information you hold which
demonstrates, clearly, whether the Council still agrees with and adheres
to those definitions or if the council has resiled from the position set
out by the Access Officer. If the Council has relsiled from the position
set out by the Access officer, please let me have the information you hold
which clearly sets out your current position which replaces the Access
officer's former definitions.

 

The information you have requested falls within the definition of
Environmental Information as defined by Regulation 2 of the Environmental
Information (Scotland) Regulations 2004 (EIRs) and is exempt under Section
39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA). The
Council is, therefore, required to respond to you under the terms of the
EIRs rather than FOISA.

 

The Council’s position remains as per the response issued to you on 8
December 2017 by Malcolm Macleod.

 

Under Regulation 16 of the Environmental Information (Scotland)
Regulations 2004 (EIRs), you have the right to request that the Highland
Council reviews any aspect of how it has dealt with your request. This
requirement for review should be put in writing to the Freedom of
Information Officer, Chief Executive’s Office, Glenurquhart Road,
Inverness IV3 5NX, within 40 working days of receipt of this letter. The
request should include details of the information requested and the
aspects of the Highland Council’s response which you are not satisfied
with.

 

If you are subsequently dissatisfied with the outcome of the Council's
review, you have the right to appeal to the Scottish Information
Commissioner under Regulation 17 of the EIRS, within six months of
receiving the Council's review response.

 

Yours sincerely

 

 

Ingrid Frost

Customer Services Officer

 

E-mail: [1][email address]

Development and Infrastructure Service

The Highland Council, Glenurquhart Road

Inverness, IV3 5NX

 

 

 

 

Unless related to the business of The Highland Council, the views or
opinions expressed within this e-mail are those of the sender and do not
necessarily reflect those of The Highland Council, or associated bodies,
nor does this e-mail form part of any contract unless so stated.
Mura h-eil na beachdan a tha air an cur an cèill sa phost-d seo a'
buntainn ri gnothachas Chomhairle na Gàidhealtachd, 's ann leis an neach
fhèin a chuir air falbh e a tha iad, is chan eil iad an-còmhnaidh a'
riochdachadh beachdan na Comhairle, no buidhnean buntainneach, agus chan
eil am post-d seo na phàirt de chunnradh sam bith mura h-eil sin air
innse.

Listening * Open * Valuing * Improving * Supporting * Partnering * Delivering
Èisteachd * Fosgailte * Luach * Leasachadh * Taic * Com-pàirteachas *
Lìbhrigeadh

References

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1. mailto:[email address]

Dear Highland Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Highland Council's handling of my FOI request 'Rua Reidh lighthouse: excluded land.'.

Mr MacLeod's letter to me of 8 December 2017 dealt with ownership issues and access and Roads Act issues. It did not touch on your Access Officers former/current definition of 'excluded land'. I am seeking the information you hold about that definition specifically, not about what Mr MacLeod wrote about. Your response fails to provide the information I requested.

Since the Access officer made his ultra vires definition of 'excluded land' the Council has gathered a lot of information and appears to have altered some of its previously held views. I have found it hard to understand whether the Council - a year on - still adheres to that definition. I have found it to be difficult to understand whether or not the Council still works to this definition. Responses such as Mr Macleod's give some vague hints that the Council no longer applies this definition but no one at the Council will tell me yes or no. I need to know if the council still adheres to that definition so that I do not waste my time or the Council's time, or the Information Commissioner's time or the time of the SPSO in following up answers such as Mr MacLeods.

Please offer to me all the advice and assisitance you are duty bound to give me under Regulation 9 to help me gain the specific information I seek rather than handing me off with information that appears related to it, but which avoids my request.

Since you have chosen to reply under the envoronmental regulations I refer you to regulation 19 'offences' and draw your attention to the personal nature of those offences.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r...

Yours faithfully,

Guy Kerry

Miles Watters,

Dear Mr Kerry,
I refer to your request for a review of the Council's handling of your
request for information.
 
The Council has previously attempted to assist you by explaining the terms
of the [1]Land Reform Act and how the Council has to interpret its
application on a case by case basis depending on the specific
circumstances of the land dispute in question.  The Council does not have
a definition of excluded land but has provided explanations of its use as
dictated by the legislation to a number of parties including you.
 
The Council can confirm that the access officer has not changed position
and we apologise if, in our attempt to explain the situation to you, we
have given this impression.
 
In terms of the EIRs, I have reviewed your request for information and the
Council's initial response and can confirm that the Council, in referring
you to correspondence which fully explained the situation, has complied
with the EIRs.
 
If you remain dissatisfied with any aspects of my response regarding the
provision of recorded information, you have the right to request that the
Scottish Information Commissioner takes up an appeal on your behalf.  Her
contact details are:
 
Scottish Information Commissioner,
Kinburn Castle,
Doubledykes Road,
St Andrews, Fife
KY16 9DS
 
Telephone: 01334 464610
Fax: 01334 464611
e-mail: [2][email address]
 
Your request should contain details of the aspects of the Council’s
response with which you are dissatisfied and should be made within 6
months of receipt of this review response.  If you are
subsequently dissatisfied with the outcome of your appeal to the
Commissioner you then have the right of appeal to the Court of Session
regarding a point of law.
 
Yours sincerely,
 
Miles Watters
 
Miles Watters | Freedom of Information & Data Protection Manager |
Chief Executive's Office | The Highland Council | Glenurquhart Road |
Inverness IV3 5NX |
Tel. 01463 702029 | Fax 01463 702830 |
[3]www.highland.gov.uk | @HighlandCouncil
 
 
 
 

show quoted sections

Guy Kerry left an annotation ()

This has now been sent to the Scottish Information Commissioner:

"I received from a Mr Macleod of Highland council a reply to a complaint of mine. That reply confused me about the Council's approach to the matter of access around Rua Reidh lighthouse. To clarify the Councils position on the specific matter of access under the Land Reform Act I sent to the Council an FOI request:

"Dear Highland Council,

The Council's Access officer declared in a communication with Gairloch Community Council that 'privacy' under access legislation can be claimed by those living at Rua Reidh lighthouse over land which he terms 'excluded'. He defines 'excluded' land as land which the residents 'own and manage'.
Please let me have the information you hold which demonstrates, clearly, whether the Council still agrees with and adheres to those definitions or if the council has resiled from the position set out by the Access Officer.
If the Council has relsiled from the position set out by the Access officer, please let me have the information you hold which clearly sets out your current position which replaces the Access officer's former definitions.
If you do not understand this request please give to me your help and assistance, as is your duty under FOI legislation, so that I can obtain the information I am entitled to.
Yours faithfully,
Guy Kerry"

The Council's response contained a one sentence response;

"The Council’s position remains as per the response issued to you on 8
December 2017 by Malcolm Macleod. "

Since Mr MacLeod's response to one of my complaints did not address the information sought in my FOI request I asked for a review, with an explanation of why the review was requested as I am required to do:

"Dear Highland Council,
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of Highland Council's handling of my FOI request 'Rua Reidh lighthouse: excluded land.'.
Mr MacLeod's letter to me of 8 December 2017 dealt with ownership issues and access and Roads Act issues. It did not touch on your Access Officers former/current definition of 'excluded land'. I am seeking the information you hold about that definition specifically, not about what Mr MacLeod wrote about. Your response fails to provide the information I requested.
Since the Access officer made his ultra vires definition of 'excluded land' the Council has gathered a lot of information and appears to have altered some of its previously held views. I have found it hard to understand whether the Council - a year on - still adheres to that definition. I have found it to be difficult to understand whether or not the Council still works to this definition. Responses such as Mr Macleod's give some vague hints that the Council no longer applies this definition but no one at the Council will tell me yes or no. I need to know if the council still adheres to that definition so that I do not waste my time or the Council's time, or the Information Commissioner's time or the time of the SPSO in following up answers such as Mr MacLeods.
Please offer to me all the advice and assisitance you are duty bound to give me under Regulation 9 to help me gain the specific information I seek rather than handing me off with information that appears related to it, but which avoids my request.
Since you have chosen to reply under the envoronmental regulations I refer you to regulation 19 'offences' and draw your attention to the personal nature of those offences.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r...
Yours faithfully,
Guy Kerry"

The Council reviewed their answer and on 19 January 2018 sent their response which contained the following;

"The Council has previously attempted to assist you by explaining the terms
of the [1]Land Reform Act and how the Council has to interpret its
application on a case by case basis depending on the specific
circumstances of the land dispute in question.  The Council does not have
a definition of excluded land but has provided explanations of its use as
dictated by the legislation to a number of parties including you.
The Council can confirm that the access officer has not changed position
and we apologise if, in our attempt to explain the situation to you, we
have given this impression. "

The Council's reply contains no information about whether it has resiled from the access officers definition or not.
I remain utterly confused since the Council says it has a polar different stance on access to that held by its employee, the access officer, i.e. the access officer works to his own definition which includes privacy provisions over land which is 'owned and managed' yet the Council says they have no such definition. These are not compatible views of the same situation.
I realise that complaints about maladministration are for SPSO, but to briefly explain this position:
The access officer is a Council employee whose duty it is to carry out the Council's work and responsibilities and decision making under the Land Reform Act. It is not possible for him to work to different standards than those held by the Council. It is not conceivable that the Council could accept such a situation. No-one can understand the Council's practical position nor their former replies to me without an understanding of their current position on this matter. The information they hold cannot be as contrary as they set out here..
Briefly, this is important because, in the situation being discussed, the residents claim 'privacy' under the act and seek to exclude the public from land which the access officer believes they 'own and manage' but which in fact they do not manage, nor do they own all the land which the access officer thinks they do.
In replies to FOI requests and complaints to the Council they have said they have made no effort to establish who owns or manages the land and have explained that in terms of the act it has no relevance. Well, according to the officer who, under the act, takes access decisions for the Council it does matter who 'owns and manages' the land. The two standpoints are not compatible and I remain confused because it is impossible to understand what the Council is doing and what is the basis for their action/inaction both now and in the future.
I asked for clarity on this and yet I have a review response that simply confuses me by saying the officer does not agree or work to the same definitions of 'access' that his employer holds. One cannot reconcile the two positions.
I do not believe I have been given the advice and assistance that I am due in order to understand what the Council's position is nor can I have been given all the information held by the Council about this - else I would understand their position in the round.
I request the Commissioner considers the matter and comes to a decision. I also request the Commissioner to consider if in toto, given all my problems with Highland Council and FOI, the Highland council is adhering to the codes of practice associated with FOI.
A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r...

Guy Kerry

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