Rua reidh road, advice from Police Scotland re removal of obstructions in the road.

The request was successful.

Dear Highland Council,

Your Mr Moncrief has explained to me in an answer to a complaint of mine that the Council served notice (under section 59 of the Roads(Scotland) Act) on the residents of the lighthouse to remove obstructions they had erected in the road.

He states that the gates have been removed 8 times under that notice. He confirms that each time the gates have been left on site. He states this is because;

"Advice from Police Scotland was sought prior to removing the gates. Should the Highland Council have removed the gates off site then this could be construed as a criminal act."

From the information you hold can you confirm that to be true?

If so, may I please see the advice so given?

From the information you hold can you tell me which officer, or rank of officer of Police Scotland gave this advice to the council?

From the information you hold can the Council please let me have information which indicates why it believes that it could not use section 59 of the Roads(Scotland)Act to its fullest extent once it had issued its requirement to remove the gates and after the residents had failed to follow that requirement.

Yours faithfully,

Guy Kerry

Highland Council

Case Ref: HC0226-2781  

Dear Guy Kerry, 

We acknowledge receipt of your request for information under the
FOI legislation received on 15/12/2017.

Subject: 

Roads Information

Request Detail:

Dear Highland Council,

Your Mr Moncrief has explained to me in an answer to a complaint of mine
that the Council served notice (under section 59 of the Roads(Scotland)
Act) on the residents of the lighthouse to remove obstructions they had
erected in the road.

He states that the gates have been removed 8 times under that notice. He
confirms that each time the gates have been left on site. He states this
is because;

"Advice from Police Scotland was sought prior to removing the gates.
Should the Highland Council have removed the gates off site then this
could be construed as a criminal act."

From the information you hold can you confirm that to be true?

If so, may I please see the advice so given?

From the information you hold can you tell me which officer, or rank of
officer of Police Scotland gave this advice to the council?

From the information you hold can the Council please let me have
information which indicates why it believes that it could not use section
59 of the Roads(Scotland)Act to its fullest extent once it had issued its
requirement to remove the gates and after the residents had failed to
follow that requirement.

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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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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References

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Freedom of Information, Highland Council

Dear Mr Kerry,

I refer to your request for information below. 

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). This is
because The Council is required to respond to you under the terms of the
EIRs rather than FOISA.

Mr Moncrieff has confirmed that the information provided to you is
correct.  This advice was give over the telephone and no copy of the
advice exists.  Therefore, as the information requested is not held by the
Council, it  is excepted under Regulation 10(4)(a) of the EIRs.

The advice was received from Inspector Ogilvie of Dingwall Police Station.

In relation to Section 59 of the Road (Scotland) Act, it has been
confirmed that, within the resources available and in an effort to resolve
the situation, section 59 was employed to its fullest extent.  Therefore,
no records are held by the Council and Regulation 10(4)(a) of the EIRs,
also applies to this part of your request.

Under the 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,

 

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 | www.highland.gov.uk

 

 

 

 

show quoted sections

Dear Highland Council,

I am writing to request an internal review of Highland Council's handling of my FOI request 'Rua reidh road, advice from Police Scotland re removal of obstructions in the road.'

Thank you for your reply. The first part is now the subject of a formal complaint against Police Scotland.

In the second part you say;

"In relation to Section 59 of the Road (Scotland) Act, it has been
confirmed that, within the resources available and in an effort to resolve
the situation, section 59 was employed to its fullest extent.  Therefore,
no records are held by the Council and Regulation 10(4)(a) of the EIRs,
also applies to this part of your request. "

Please review this part of your reply and let me have the information I requested.

I do not understand what it is you are trying to convey to me within that paragraph.

You begin by saying there has been some sort of confirmation that section 59 has been used to its fullest extent, but within that sentence you appear to suggest there are reasons why that has not been so - because of resources and efforts to resolve the situation (that being the illegal and ongoing obstruction of the road to Rua Reidh by the illegally erected gates and posts). You then say, despite having this 'confirmation', that 'therefore' the Council has no records to show the council's use of section 59 to 'its fullest extent'. I do not understand how such a confirmation of the full use of section 59 can result in the Council holding no records of that full use of the law. Such an apparent 'confirmation' does not logically lead 'therefore' to no record keeping or filing of relevant information.

I am confused because it is very clear on the ground that section 59 has not been used to its full extent since the road is still illegally blocked nearly two years after it was first blocked, and it is still blocked by the same gates and posts which were erected nearly two years ago - yet you say section 59 has been used to its fullest extent but that the Council holds no information about that.

I am sure you will understand that is all very difficult to believe. The Council set out on a course of action, as set out in law, to have these obstructions removed from the road. The Council has singularly failed to ensure that has happened over the course of nigh two years. Having set out on this legal course of action by using section 59 to clear the road you now say you have no information about that use of section 59 'to its fullest extent'? Surely not! That would be maladministration.

If any of this is unclear please fulfil your duty to offer to me advice and assistance to help me obtain the information I seek.

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

Stewart Fraser, Highland Council

Dear Mr Kerry

 

Thank you for your request for review.  It has been explained previously
that FOI/EIR requests do not represent a platform for the continuation of
complaints or disagreement with the Council. 

 

I, therefore, assume that you wish the Council to review it statement that
information is not held and that regulation 10(4)(a) applies to the second
part of your request.

 

You asked: "From the information you hold can the Council please let me
have information which indicates why it believes that it could not use
section 59 of the Roads(Scotland)Act to its fullest extent once it had
issued its requirement to remove the gates and after the residents had
failed to follow that requirement"

 

The Council believes that it has used Section 59 of the Roads (Scotland)
Act to the fullest extent it can within the budget and resources that it
has.  It does not believe that it is in the public interest to instigate
court action where there is no guarantee that this would be successful and
could result in substantial costs.    It is not the case that the Council
believes that further action could not be taken under section 59 of the
Roads(Scotland)Act.  Therefore, it is not possible to identify any
information which falls within that part of your request.  Having reviewed
the Council's response to your request, I have concluded that the
Council's initial response was correct.

 

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: [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,

 

 

Stewart Fraser

Head of Corporate Governance

Highland Council

01463 702112

 

Any internal legal advice provided herein is for the Client Service only. 
Written permission must be sought from the author prior to any disclosure
to an external organisation or third party

 

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

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