Rua Reidh: Privacy and access to land owned by Inverasdale Estate and roads.

The request was partially successful.

Dear Highland Council,

In previous replies to FOI requests of mine it has been stated by Highland Council that your legal team have confirmed that Inverasdale Estate has no qualms about the public taking access to its lands.

From the information you hold do you understand that is the case even now?

The council has more recently authorised the estate to erect a further obstruction on the road from Melvaig to Rua Reidh in the form of a gate which allows the estate more easily to direct the public to (safely) park and (more safely) walk on its lands. It appears therefore the estate not only permits foot access to its land but positively is encouraging the public to do so.

If this remains the case, and from the information you hold about the estate's attitude and permissions for the public to access its lands on foot, does the council agree with me that the public, having gained such permission or acquiescence and the encouragement of the Inverasdale Estate to go there on foot, does not, and does not need to, exercise its access rights under the land reform legislation when it walks on Inveradale Estate lands?

From the information you hold, can 'privacy' under the land reform act, be claimed over anyone who is not exercising a right of access under that same legislation?

From the information you hold, can the Council clearly state whether it considers that 'privacy', under land reform legislation, can be legitimately claimed and enforced over members of the public who are legally using a road as defined by the Roads(Scotland)Act?

Yours faithfully,

Guy Kerry

Highland Council

Case Ref: HC0226-3078  
Dear Guy Kerry, 
We acknowledge receipt of your request for information under the
FOI legislation received on 09/02/2018.
Subject: 
Land Information
Request Detail:
Dear Highland Council, In previous replies to FOI requests of mine it has
been stated by Highland Council that your legal team have confirmed that
Inverasdale Estate has no qualms about the public taking access to its
lands. From the information you hold do you understand that is the case
even now? The council has more recently authorised the estate to erect a
further obstruction on the road from Melvaig to Rua Reidh in the form of a
gate which allows the estate more easily to direct the public to (safely)
park and (more safely) walk on its lands. It appears therefore the estate
not only permits foot access to its land but positively is encouraging the
public to do so. If this remains the case, and from the information you
hold about the estate's attitude and permissions for the public to access
its lands on foot, does the council agree with me that the public, having
gained such permission or acquiescence and the encouragement of the
Inverasdale Estate to go there on foot, does not, and does not need to,
exercise its access rights under the land reform legislation when it walks
on Inveradale Estate lands? From the information you hold, can 'privacy'
under the land reform act, be claimed over anyone who is not exercising a
right of access under that same legislation? From the information you
hold, can the Council clearly state whether it considers that 'privacy',
under land reform legislation, can be legitimately claimed and enforced
over members of the public who are legally using a road as defined by the
Roads(Scotland)Act? 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.
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Yours Sincerely,
The Highland Council
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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

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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 February 2018. You
requested the following information:-

 

In previous replies to FOI requests of mine it has been stated by Highland
Council that your legal team have confirmed  that Inverasdale Estate has
no qualms about the public taking access to its lands.

 

From the information you hold do you understand that is the case even now?

 

The council has more recently authorised the estate to erect a further
obstruction on the road from Melvaig to Rua Reidh in the form of a gate
which allows the estate more easily to direct the public to (safely) park
and (more safely) walk on its lands. It appears therefore the estate not
only permits foot access to its land but positively is encouraging the
public to do so.

 

If this remains the case, and from the information you hold about the
estate's attitude and permissions for the public to access its lands on
foot, does the council agree with me that the public, having gained such
permission or acquiescence and the encouragement of the Inverasdale Estate
to go there on foot, does not, and does not need to, exercise its access
rights under the land reform legislation when it walks on Inveradale
Estate lands?

 

From the information you hold, can 'privacy' under the land reform act, be
claimed over anyone who is not exercising a right of access under that
same legislation?

 

From the information you hold, can the Council clearly state whether it
considers that 'privacy', under  land reform legislation, can be
legitimately claimed and enforced over members of the public who are
legally using a road as defined by the Roads(Scotland)Act?

 

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 advises that for the purpose of the EIRs the information which
is subject to the regulations is information that is in the possession,
has been produced or received by an Authority, or held by another person
on that authority’s behalf, at the time the request is received.  The EIRs
cover any information in written, visual, aural, electronic or any other
material form. The EIRs don't apply to someone's opinion, if it has not
been put on record. The Council considers your request is not for
information that is held by the Council but is seeking the Council’s
opinion on interpretation of the law.  Your request also seeks the
Council’s opinion on the interpretation of an opinion of a third party -
Inverasdale Estate.  The Council can refuse a request under Regulation
10(4)(a) of the EIRs if it does not hold that information. The Council
considers you have requested information that the Council does not hold.  

 

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.

Thank you for your response to my Freedom of Information requests 'Rua Reidh: Privacy and access to land owned by Inverasdale Estate and roads'. I am writing to request an internal review of Highland Council's handling of my FOI request 'Rua Reidh: Privacy and access to land owned by Inverasdale Estate and roads.'.

Your reply is not helpful and I consider it does not accord with your duty under section 9 EIR to provide me with advice and assistance.

I now request you to review your response and to provide, as per your duty under section 9, whatever reasonable help and assistance which may be necessary to help me to understand and obtain the information you hold about the questions I have posed.

The council said in its response that:

"The Council considers your request is not for information that is held by the Council but is seeking the Council’s opinion on interpretation of the law."

I do not understand which of my requests you interpret as seeking your 'opinion' rather than information you hold. Each of my requests begins with or contains the phrase 'from the information you hold'. That is not a question seeking anyone's opinion: it seeks the information you hold and clearly that is a request for information you hold and which you may release.

Each question is a separate request for information you hold and which I am entitled to. If you believe you do not hold the information requested or if you believe I am not entitled to it then I consider you are obliged by the regulations to treat each request separately and cannot properly lump them all together. Please review your response and let me know which of my requests you do not hold information about and let me have the information you do hold where appropriate or explain why I may not be given it.

You also state:

"The Council considers you have requested information that the Council does not hold."

I do not understand that, because, to be frank, neither I nor the regulations are interested in your considerations of whether or not I have asked for information you do not hold. You are required by law to seek the information I request from all the information you hold and you are required to give that to me if you have it and if there is no derogation available to you in law which allows you not to release that information. If you do not hold information or if you believe you do not have to release it to me then you must be clear with me about that and explain which regulation you rely upon not to give to me the information requested. Whether the council holds the information I have requested is a matter of fact, not a matter of whether staff there 'consider' I have asked for information you do not hold. Please review your response.
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 response to your
request for information.
 
I have looked at the questions posed and would respond as follows.  The
first three paragraphs of your request seem to take the form of setting a
scenario, with regard to the Inverasdale Estate’s position in relation to
the access at Rua Reidh Lighthouse.  You then go on to ask three questions
in relation to the interpretation of the law under the scenario you have
set.
 
I can confirm that, as far as the Council is aware, the Inverasdale Estate
has not changed its position in relation to access.
 
However, the Council holds no information which directly relates to your
scenario.  To answer 2 of your questions , our legal staff would need to
review your scenario in light of existing legislation and common law and,
through their expertise, provide a likely answer.  Therefore, to answer
your questions would be to provide legal advice and we are not required to
provide such services in response to information requests.  Legal advice
is available from any solicitors, albeit at a cost.
 
In response to your last question regarding whether privacy can be
legitimately claimed and enforced over members of the public who are
legally using a road, the answer is yes.  There is a right of privacy and
there is a right to be on most land. Where these two rights conflict, the
Access Authority can take a view on what it considers reasonable using
guidance in the Access Code but only a court can make a definitive
decision.
 
Having reviewed the council’s response to your request for information, I
have provided answers to the 2 questions which relate to matters of fact. 
However, I believe that it is correct to say that we don’t hold
information which provides the answers to the other questions.
 
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.  His
contact details are:
 
Scottish Information Commissioner,
Kinburn Castle,
Doubledykes Road,
St Andrews, Fife
KY16 9DS
 
Telephone: 01334 464610
Fax: 01334 464611
e-mail: [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 |
[1]www.highland.gov.uk | @HighlandCouncil
 
 
 

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