- 10 Apr 2019
Date received: 5 Mar 2019
Date responded: 2 Apr 2019
I am now requesting the details of your appeal process as this was not conveyed in any the your response letters thus far.
I also seek the following information as way of understanding how this decision was reached and in order for me to have all the facts correct before planning my next stage.
I am thereby submitting a Freedom of Information (FOI) 2000 Act Request to see how and when the Scotland Transerve as the operating company of the A78 Wemyss Bay Road undertakes inspections of its carriageways, particularly the A78. You claim this was done on the 5/12/2018 and that you are required to undertake regular safety inspections.
I would like a copy of your full investigation and analysis report that lead to this decision being made that there is no evidence of negligence on the part of Scotland Transerv.
In the event that this does not include the following ; I would also request the following information.
1) I would like a copy of the formal inspection of this section of road A78 that was undertaken on the 5/12/2018 that shows no actionable defects being noted or identified.
2) I would like a copy of your criteria that would applied to indicate what is a actionable defect as referenced in my response letter and the process that is undertaken to determine this fact.
3) I would also like copy of the remedial permanent repair report and when the repair was carried out I am assuming this will be between 11/12/2018 and the 13/12/2018. I am specifically looking for information on the depth and width measurements and category logged for this defective road/pot hole. This will be linked to the defect that I logged with the control centre on the 11/12/2018.
3) I would also like all records for the past 12 months on the repairs to this particular 1 metre area in question of the A78 where this offending pot hole is located.
4) whether any subsequent defect / repair has been noted since 11/12/2018 to the 31/1/2019 and how many safety inspections have taken place during this period.
5) The total number of weekly reports that have highlighted this area as a defect in need of repair and subsequent remedial procedures that then resulted and within what time scales for the past year.
6) How many claims in the last 12 months for pot hole damage to cars/vehicles have been submitted for the A78 and how many were successful.
As the contracted company on behalf of the Scottish Ministers I imagine you will acknowledge my request and then have 20 working days to supply the information. I then plan to review this data and corresponding letter and will take this complaint to the Information commissioner’s office and the Scottish Ombudsman depending on the outcome. I fully plan to seek full compensation for the damage costs as per my original claim.
I am keeping all correspondence and time lines in relation to this matter and thus far am far from impressed.’
As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.
This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.
Please refer to Annex A of this request which is the Scotland Transerv Third Party Claims Process.
While our aim is to provide information whenever possible, in this instance we do not have the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. Each claim is examined by Scotland Transerv senior management on an individual basis.
In addition, if a roads authority has no prior knowledge of a road defect (pothole) then they cannot be held liable. In this case Scotland TranServ has confirmed that they were not aware of the defect and on being advised took steps to rectify within contractual timescales.
I have numbered the additional responses for ease of reference;
1. Please refer to Annex B of this request which is the Inspection Defect Report for the period of 5 December 2018 to 31 January 2019 at the location requested.
2. Most of the information you have requested is available from; https://www.transport.gov.scot/media/44436/frequently-asked-questions-about-the-scottish-trunk-road-network-january-2019.pdf
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format.
Please refer to Annex C of this request which is the Trunk Road Inspection Manual which contains the criteria that would applied to indicate what is an actionable defect.
3, 3 and 4. Please refer to Annex D of this request which is all noted defects via complaints from the general public. The first complaint is the only complaint that we have had in relation to this 1m stretch of road. The permanent repair was carried out by Scotland TranServ’s Incident Response Unit on 11 December at 17:00 using a permanent patch repair system as per attached Incident Report. For road safety reasons, the Incident Response Unit do not measure width or depth of potholes prior to filling.
An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exception is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.
5. While our aim is to provide information whenever possible, in this instance we do not have the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. We do not hold any weekly reports that have highlighted this area as a defect in need of repair or any subsequent remedial procedures.
6. The total number of claims received for the linking section of Inverkip to Spey Road in the last 12 months was 9. Scotland TranServ has confirmed none were successful. One claim was recevied for this specific location.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House