Rua reidh Road: new gate and advice assistance under section 15 FOISA

The request was partially successful.

Dear Highland Council,

I have been trying, unsuccessfully, to obtain information from the council about its decision, as roads authority, to authorise a new gate to obstruct the road from Melvaig to Rua Reidh Lighthouse. I have a statutory right to be provided with that information.

When I asked for information about the reason for the authorisation I have been told by the council it was to avoid 'congestion'. This did not appear to be information the council could possibly have. When I asked for specific information to show that 'congestion' existed I was given an ex post facto rationalisation and told the council knew the gate had had an effect because someone there remembered someone else saying it had made a difference. This is clearly not the information held by the council that demonstrated 'congestion' prior to the decision to authorise the gate and cannot have been the reason why the decision was taken. A decision taken in hope is not a legally made decision.

So, a gaping hole is left in my knowledge about this new gate. I do not know why it is there. It may not be legally authorised. The council has been unhelpful.

May I please now implore you, under section 15 of FOISA, to help me with advice and assistance to obtain the information you must have to answer my concerns for the following information.

I seek to obtain the information held by the council from both internal and external sources that

1. demonstrates the reasons for and the reasonable need for this gate and the justification for the decision to authorise this new gate and that shows the decision was a fair and impartial decision, taken properly and that it took account of all those things a decision maker is expected to consider and disregarded all those matters which are irrelevant

2. which shows the exercise of this power to authorise an obstruction of a road - to obstruct the public right of passage - was used reasonably i.e that the decision was the only proportionate decision available and that it was rationally open to a reasonable decision maker in possession of all the facts in the case and that it was used for the purpose(s) set out in law and not used unlawfully for a purpose other than set out in law and that the decision was not beyond the range of responses open to a reasonable decision maker given the facts surrounding the case

3. shows the decision was taken by a person of appropriate seniority and experience, appropriately granted delegated powers to take this decision and that the decision maker was not bias

4. that due process was followed and the decision making process was procedurally fair

5. Any information published prior to the decision, consultations with those affected so that those affected had a fair opportunity to be heard (to ensure the Council had all relevant factors to hand) etc

6. information published after the decision such as the material facts or the reasons for the decision

7. to demonstrate that the authorisation was not given simply to cover the previous failings of the council to remove other illegal obstructions on the road which circumstances had ensured were a danger to the public and which it is said locally this gate protects the public from, and which it is said locally was the reason for the application for this obstruction

I would also like to ensure that I see the formal application for this authorisation and the formal authorisation itself.

Please provide the information you hold as above or otherwise advise and assist me to formulate my request to achieve the acquisition of the information I ask for or give to me any other help you see as necessary to meet that aim.

Yours faithfully,

Guy Kerry

Highland Council

Case Ref: HC0226-2682

 

 

 

 

 

 

 

Dear Guy Kerry,

 

 

 

 

 

 

 

 

 

We acknowledge receipt of your request for information under the
FOI legislation received on  23/11/2017.

 

 

 

 

 

 

 

 

 

Subject:

 

 

 

 

 
Roads Information

 

 

 

 

 

 

 

 

 

Request Detail:

 

 

 

 

 
Dear Highland Council,

I have been trying, unsuccessfully, to obtain information from the
council about its decision, as roads authority, to authorise a new gate
to obstruct the road from Melvaig to Rua Reidh Lighthouse. I have a
statutory right to be provided with that information.

When I asked for information about the reason for the authorisation I
have been told by the council it was to avoid 'congestion'. This did not
appear to be information the council could possibly have. When I asked
for specific information to show that 'congestion' existed I was given
an ex post facto rationalisation and told the council knew the gate had
had an effect because someone there remembered someone else saying it
had made a difference. This is clearly not the information held by the
council that demonstrated 'congestion' prior to the decision to
authorise the gate and cannot have been the reason why the decision was
taken. A decision taken in hope is not a legally made decision.

So, a gaping hole is left in my knowledge about this new gate. I do not
know why it is there. It may not be legally authorised. The council has
been unhelpful.

May I please now implore you, under section 15 of FOISA, to help me with
advice and assistance to obtain the information you must have to answer
my concerns for the following information.

I seek to obtain the information held by the council from both internal
and external sources that

1. demonstrates the reasons for and the reasonable need for this gate
and the justification for the decision to authorise this new gate and
that shows the decision was a fair and impartial decision, taken
properly and that it took account of all those things a decision maker
is expected to consider and disregarded all those matters which are
irrelevant

2. which shows the exercise of this power to authorise an obstruction of
a road - to obstruct the public right of passage - was used reasonably
i.e that the decision was the only proportionate decision available and
that it was rationally open to a reasonable decision maker in possession
of all the facts in the case and that it was used for the purpose(s) set
out in law and not used unlawfully for a purpose other than set out in
law and that the decision was not beyond the range of responses open to
a reasonable decision maker given the facts surrounding the case

3. shows the decision was taken by a person of appropriate seniority and
experience, appropriately granted delegated powers to take this decision
and that the decision maker was not bias

4. that due process was followed and the decision making process was
procedurally fair

5. Any information published prior to the decision, consultations with
those affected so that those affected had a fair opportunity to be heard
(to ensure the Council had all relevant factors to hand) etc

6. information published after the decision such as the material facts
or the reasons for the decision

7. to demonstrate that the authorisation was not given simply to cover
the previous failings of the council to remove other illegal
obstructions on the road which circumstances had ensured were a danger
to the public and which it is said locally this gate protects the public
from, and which it is said locally was the reason for the application
for this obstruction

I would also like to ensure that I see the formal application for this
authorisation and the formal authorisation itself.

Please provide the information you hold as above or otherwise advise and
assist me to formulate my request to achieve the acquisition of the
information I ask for or give to me any other help you see as necessary
to meet that aim.

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:
http://www.itspublicknowledge.info/YourR...

 

 

 

 

 

 

 

 

 

Yours Sincerely,

 

 

 

 

 

 

 

 

 

The Highland Council

 

 

 

 

 

 

 

 

 

This is an automatically generated email - PLEASE DO NOT REPLY

 

 

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

Dear Highland Council,
Please review your decision not to reply to my Freedom of information request. The law states that you must reply promptly and it gives you no more than 20 working days for your response. You ackowledged this request on 24 November.

This is not the first time my requests have been ignored and it is a pattern of behaviour endemic within the Council which is also repeated when you deal with formal complaints of mine.

Yours faithfully,

Guy Kerry

Freedom of Information, Highland Council

Thank you for your email. The office is now closed for the Christmas break, and will re-open on Thursday 3rd January, when we will respond to your email.

Kind regards,

Freedom of Information
Highland Council

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

Miles Watters,

4 Attachments

Dear Mr Kerry,

I refer to your request for a review received 23^rd December 2017.  I have
reviewed the Council’s handling of your request and apologise that you did
not receive a respond prior to the Christmas holidays.  I have now
provided the answers to your questions below and have attached supporting
documents which are referred to.

 

I have redacted personal data of individuals referred to in the documents
and emails, where those individuals did not directly contact the Council
or attend the meetings and the personal data was not directly provided by
those individuals.   This information is believed to be excepted under
Regulation 11(2) of the Environmental Information (Scotland) Regulations
2004.

 

I hope that the information below and attached now fulfil your request.

 

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: [1][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 |

[2]www.highland.gov.uk | [3]@HighlandCouncil

 

 

 

Dear Highland Council, I have been trying, unsuccessfully, to obtain
information from the council about its decision, as roads authority, to
authorise a new gate to obstruct the road from Melvaig to Rua Reidh
Lighthouse. I have a statutory right to be provided with that information.
When I asked for information about the reason for the authorisation I have
been told by the council it was to avoid 'congestion'. This did not appear
to be information the council could possibly have. When I asked for
specific information to show that 'congestion' existed I was given an ex
post facto rationalisation and told the council knew the gate had had an
effect because someone there remembered someone else saying it had made a
difference. This is clearly not the information held by the council that
demonstrated 'congestion' prior to the decision to authorise the gate and
cannot have been the reason why the decision was taken. A decision taken
in hope is not a legally made decision. So, a gaping hole is left in my
knowledge about this new gate. I do not know why it is there. It may not
be legally authorised. The council has been unhelpful. May I please now
implore you, under section 15 of FOISA, to help me with advice and
assistance to obtain the information you must have to answer my concerns
for the following information.

I seek to obtain the information held by the council from both internal
and external sources that

 

1.       demonstrates the reasons for and the reasonable need for this
gate and the justification for the decision to authorise this new gate and
that shows the decision was a fair and impartial decision, taken properly
and that it took account of all those things a decision maker is expected
to consider and disregarded all those matters which are irrelevant

 Reason for:

·         The gate is intended to reduce traffic congestion at the
lighthouse and is located in the safest position to facilitate turning and
any future parking proposals by the estate. See Gairloch Community Council
Meeting 5 Jun 2017

Reasonable need:

·         Notice served on Lighthouse owners did not persuade them to
remove the gates

·         Removal of the gates on a number of occasions simply saw the
gates re-erected

Justification for Decision (no records kept)

·         Gates were being re-erected as fast they were being removed –
this operation was unsustainable

·         Continued operations to remove the gates was deferring other
works

Fair and Impartial Decision:

·         The decision was made in accordance with Roads (Scotland) Act
1984 Section 59 Control of Obstructions - no obstruction shall be placed
across a road except with Local Roads Authority permission.

 

2.       which shows the exercise of this power to authorise an
obstruction of a road - to obstruct the public right of passage - was used
reasonably i.e that the decision was the only proportionate decision
available and that it was rationally open to a reasonable decision maker
in possession of all the facts in the case and that it was used for the
purpose(s) set out in law and not used unlawfully for a purpose other than
set out in law and that the decision was not beyond the range of responses
open to a reasonable decision maker given the facts surrounding the case

Reasonableness of Decision to Approve Gate (The decision making process
was not recorded.)

·         The gate is intended to reduce traffic congestion at the
lighthouse and is located in the safest position to facilitate turning and
any future parking proposals by the estate. See Gairloch Community Council
Meeting 5 Jun 2017

·         Other alternatives already explored. See 1 above

·         13 visits were made to the site and the gates were removed 8
times.

Only proportionate decision available

·         As a private road, all powers and duties must comply with the
Roads (Scotland) Act 1984

·         Separate meetings with lighthouse owners and Gairloch CC failed
to find a solution.

Rationally open to a reasonable decision maker in possession of all the
facts

·         Decision to approve the estate gate was made by Iain Moncrieff
B.Eng. C.Eng MICE MIHT Roads Operations Manager Skye Ross and Cromarty. 

·         See attached documents

‘The estate gate’ was used for the purpose(s) set out in law and not used
unlawfully for a purpose other than set out in law

·         The Roads (Scotland) Act 1984 does not define the purpose of the
estate gate.

The decision was not beyond the range of responses open to a reasonable
decision maker given the facts surrounding the case

·         The decision process was not recorded

·         Iain Moncrieff was aware of the situation – see attached emails

 

3.       shows the decision was taken by a person of appropriate seniority
and experience, appropriately granted delegated powers to take this
decision and that the decision maker was not bias

·         Approval for the gate was taken by Iain Moncrieff B.Eng. C.Eng
MICE MIHT Roads Operations Manager Skye Ross and Cromarty

·         Iain Moncrieff has 28 year experience in highway engineering

 

4.       that due process was followed and the decision making process was
procedurally fair

·         The decision was made in accordance with Roads (Scotland) Act
1984 Section 59 Control of Obstructions - no obstruction shall be placed
across a road except with Local Roads Authority permission.

 

5.       Any information published prior to the decision, consultations
with those affected so that those affected had a fair opportunity to be
heard (to ensure the Council had all relevant factors to hand) etc

·         See 1 above.  

·         Gate requested by the estate in consultation with Gairloch CC
and Cllr Macleod at the meeting on 5 June 2017.

·         There is no consultation or objection period required under
Roads (Scotland) Act 1984 Section 59 Control of Obstructions.

 

6.       information published after the decision such as the material
facts or the reasons for the decision

·         Subsequent meeting with David Richardson (Federation of Small
Businesses) representing the lighthouse owners reported the new gate had
reduced congestion at the lighthouse.  

·         No notes were taken at meeting.

 

7.       to demonstrate that the authorisation was not given simply to
cover the previous failings of the council to remove other illegal
obstructions on the road which circumstances had ensured were a danger to
the public and which it is said locally this gate protects the public
from, and which it is said locally was the reason for the application for
this obstruction

·         See 2 above

I would also like to ensure that I see the formal application for this
authorisation and the formal authorisation itself.

·         See attached email

Please provide the information you hold as above or otherwise advise and
assist me to formulate my request to achieve the acquisition of the
information I ask for or give to me any other help you see as necessary to
meet that aim. Yours faithfully, Guy Kerry

References

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1. Send Email to [email address](opens in new window)
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2. http://www.highland.gov.uk/
3. http://twitter.com/HighlandCouncil

Guy Kerry left an annotation ()

I will appeal to the Information Commissioner. That will take some time as will also need to formulate something for the Scottish Public Services Ombudsman. I have now recieved many replies from the Council clearly stating they do not keep records of important events or which form the basis for their legislative decisions here again we have them claiming un recorded decision making is all done properly. It is not. They also claim inter alia that a decision made according to the letter of an Act is a proper decision. That is far from nescessarily so: proper, recorded steps MUST be taken if a decision is taken to use the law, before that decision is a legal one. For any one interested in public decision making and the law and how Highland council fails is so many respects see ' The judge over your shoulder'. a formal exposition foradminitrators on the law as it goiverns administrative decision making. Google it.

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