Rua Reidh road Wester Ross. Advice to Highland Council re- removal of obstructions to road.

The request was refused by Police Scotland.

Dear Police Scotland,

In an email to me dated 15 December, in answer to a complaint of mine, Mr Iain Moncrief, roads manager for Highland Council states that the council served notice on the residents of the Rua Reidh lighthouse, by Melvaig, Gairloch (under section 59 of the Roads(Scotland) Act) to remove the obstructions they had erected across that road. The
residents failed to remove the obstruction and following Section 59 of the Roads (Scotland) Act the Council sought to remove them on eight occassions.

The Council did not remove the gates from the site, as they, or an officer in uniform, are mandated to do under the Act, because Mr Moncrief states that;

"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 are you able to confirm that it is true that an officer of Police Scotland gave such legal advice to the Council? If so, what rank of officer gave this advice and was he authorised to give such legal advice to the Council which clearly would contradict the Roads(Scotland) Act?

Yours faithfully,

Guy Kerry

FOI, Inverness, Police Scotland

1 Attachment

NOT PROTECTIVELY MARKED
Good afternoon Mr Kerry

Please find attached response to FOI request 2017-2874.

Kind regards

Andrene

Andrene MacLeod
Lead Disclosure Officer (North)
Information Management
Inverness

Office: 01463 720516
Website: http://www.scotland.police.uk
Twitter: @policescotland
Facebook: www.facebook.com/policescotland

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Dear Police Scotland,

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

I am writing to request an internal review of Police Scotland's handling of my FOI request 'Rua Reidh road Wester Ross. Advice to Highland Council re- removal of obstructions to road.'.

I do not understand from your reply how Police Scotland 'deemed' the advice given by Inspector Ogilvie of Dingwall as not 'to be legal advice' . Clearly he gave his advice on a legal matter; how does Police Scotland 'deem' that not to be legal advice which 'therefore' does not meet the criteria of (my) request? I think without more that this is a pedant's view. The man on the Clapham omnibus would be hard pressed to understand what you say. Please review and rephrase or explain what it is you are saying so that I and others can understand why this advice about a legal matter is deemed not to be legal advice.

Section 15 of the FOI makes it your duty to give to me your advice and assistance, please help me to understand your stated position.

I would also ask you to note that your officer MacRae has emailed to me that this response to my FOI request was to be taken by me as a response to complaints I have made about the advice proffered by Ogilvie. This response does not do that ( and I could never expect an FOI request to be a formal response to a complaint).

Nevertheless, since Police Scotland has chosen to conflate a complaint and an FOI request I make the following observation.

Highland Council unequivocally states that Ogilvie said it could be a criminal offfence to take the gates off site and this advice prevented the Council from carrying out the terms of an unchallenged legal notice it had served on the lighthouse owners. Ogilvie's stance on this matter contrasts with the actions of your officer at an earlier meeting of Gairloch Community Council when the occupier of the lighthouse admitted she had unlawfully stolen roadside signs, which had lawfully been erected on another owners property. She stated that she had them in the boot of her car. That officer stated that no offence could have been committed if the signs were returned. The Council acting under the Roads(Scotland)Act are legally obliged to return any obstruction they remove from a road if so requested by the owner of the obstruction; other wise they can sell the goods to recoup some of their costs. No offence can be committed by the Council when the Council lawfully removes an obstruction after the proper notices have been served and when those notices have not been challenged in Court. I understand that a over a year after the service of these notices to remove the obstructing gates from the road the notice remains unchallenged in Court. I suggest the notices have been accepted as valid and it is now too late for them to be challenged in Court.

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

FOI, Inverness, Police Scotland

NOT PROTECTIVELY MARKED

Good morning Mr Kerry

 

Your request for a review of FOI 2017-2874 has been allocated to one of
the IM Disclosure Managers to progress and the response will be provided
to you within the statutory timeframe.

 

Kind regards

 

Andrene

 

Andrene MacLeod

Lead Disclosure Officer (North)

Information Management

Inverness

 

Office: 01463 720516

Website: [1]http://www.scotland.police.uk

Twitter: @policescotland

Facebook: [2]www.facebook.com/policescotland

 

From: Guy Kerry [[3]mailto:[FOI #452856 email]]

Sent: 16 January 2018 20:35

To: FOI

Subject: Internal review of Freedom of Information request - Rua Reidh
road Wester Ross. Advice to Highland Council re- removal of obstructions
to road.

 

Dear Police Scotland,

 

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

 

I am writing to request an internal review of Police Scotland's handling
of my FOI request 'Rua Reidh road Wester Ross. Advice to Highland Council
re- removal of obstructions to road.'.

 

I do not understand from your reply how Police Scotland 'deemed' the
advice given by Inspector Ogilvie of Dingwall as not 'to be legal advice'
. Clearly he gave his advice on a legal matter; how does Police Scotland
'deem' that not to be legal advice which 'therefore' does not meet the
criteria of (my) request? I think without more that this is a pedant's
view. The man on the Clapham omnibus would be hard pressed to understand
what you say.  Please review and rephrase or explain what it is you are
saying so that I and others can understand why this advice about a legal
matter is deemed not to be legal advice.

 

Section 15 of the FOI makes it your duty to give to me your advice and
assistance,  please help me to understand your stated position.

 

I would also ask you to note that your officer MacRae has emailed to me
that this response to my FOI request was to be taken by me as a response
to complaints I have made about the advice proffered by Ogilvie. This
response does not do that ( and I could never expect an FOI request to be
a formal response to a complaint).

 

Nevertheless, since Police Scotland has chosen to conflate a complaint and
an FOI request I make the following observation.

 

Highland Council unequivocally states that Ogilvie said it could be a
criminal offfence to take the gates off site and this advice prevented the
Council from carrying out the terms of an unchallenged legal notice it had
served on the lighthouse owners. Ogilvie's stance on this matter contrasts
with the actions of your officer at an earlier meeting of Gairloch
Community Council when the occupier of the lighthouse admitted she had
unlawfully stolen roadside signs, which had lawfully been erected on
another owners property. She stated that she had them in the boot of her
car. That officer stated that no offence could have  been committed if the
signs were returned. The Council acting under the Roads(Scotland)Act are
legally obliged to return any obstruction they remove from a road if so
requested by the owner of the obstruction; other wise they can sell the
goods to recoup some of their costs. No offence can be committed by the
Council when the Council lawfully removes an obstruction after the proper
notices have been served and when those notices have not been challenged
in Court. I understand that a over a year after the service of these
notices to remove the obstructing gates from the road the notice remains
unchallenged in Court. I suggest the notices have been accepted as valid
and it is now too late for them to be challenged in Court.

 

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

 

Yours faithfully,

 

Guy Kerry

 

 

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References

Visible links
1. http://www.scotland.police.uk/
2. http://www.facebook.com/policescotland
3. mailto:[FOI #452856 email]
4. https://www.whatdotheyknow.com/request/r...

Sturrock, Claire, Police Scotland

1 Attachment

OFFICIAL

Dear Mr Kerry,

 

Please find attached a response to your recent request for a review of the
above referenced decision.

 

Regards,

 

Claire Sturrock
Disclosure Manager - North
Information Management
Police Scotland
PO Box 59, West Bell Street, Dundee, DD1 9JU

01382 596657

[1][email address]
[2]www.scotland.police.uk
@policescotland
[3]www.facebook.com/policescotland

 

 

 

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Guy Kerry left an annotation ()

Clearly the review follows Police Scotland's own agenda and does not deal with myrequirement for review. I have sent the following to the Information Commissioner for Scotland:

"I attach a letter purporting to be Police Scotland's reply to my requirement to review an earlier FOI response of theirs. It briefly sets out the relevant parts of my requests.

I did not understand the first response and asked for a review specifically to explain the wording of the original response i.e I cannot understand how advice given about a legal matter is deemed to be not legal advice and how it could thus be deemed outside the remit of my original request. This is despite my original request quoting Highland Council and my asking about any 'such' legal advice given by their officer. Police Scotland's responses are far too strictly controlled to be an answer to 'such' a request and I think they have been too pedantic in their responses and have failed their section 15 duty to help me.

I believe they understand perfectly what they are being asked and yet they purposely avoid responding to it.

The original answer also ignored most of the original request.

The review clearly ignores my request for an explanation (which might have explained why most of my original request was ignored) even although my request was clear that I did not understand what had been said to me. The review purposefully avoids any mention of their section 15 duty to help and assist me although that is what I have specifically asked for. I am non-the-wiser for the review.

Both the original and the review responses clearly state that Inspector Ogilvie gave advice to Highland Council about their legal status (i.e. he gave ' ..such legal advice.') should they remove obstructions to a road; which they are mandated to do under the Roads(Scotland)Act: yet they have included and confirmed a section 17 notice stating they hold no information about this, yet they give considerable detail about that advice which could, I think, only come from the information held by Police Scotland.

The Police Scotland reviewer states:

'My role is to consider the response issued and determine whether or not your request was handled in accordance with the provisions of the Freedom of Information (Scotland) Act 2002.

As part of the review, I am also required to consider the quality of the administrative process applied to your request and I am pleased to record no deficiency in that regard.

In reviewing the response I have studied all documentation relevant to the request, including that which documents both the research carried out and the decision making process.

The decision I have to make is whether or not section 17 of the Act was correctly applied to your request. '

That is not correct! The role of a reviewer is to undertake the required review: that is they must address the specifics of my requirement for review. They may not avoid doing so in the high-handed manner set out here which ignores my requirement for review and does something very different to suit Police Scotland's agenda rather than my specific requirement for review.

I request the Commissioner looks carefully at this and comes to decisions about whether Police Scotland have or have not treated me correctly under FOI legislation and if they have given to me the help they are duty bound to give to me and if they have respected my requirement for review and if they have acted within the section 60 code of practice.

The full text of my requests and Police Scotland's responses may be found at:

https://www.whatdotheyknow.com/request/r...

Guy Kerry left an annotation ()

Police Scotlands reply and inaction on the road to Rua reidh lighthouse now forms the subject of an investigation by thePolice Investigations and Review Commissioner. I have withdrawn this FOI request.