UPDATES
Clarification email + request for internal review of FOI
Dear Mr Valiente,
I write to clear any confusion regarding our recent communication.
Since issuing the notice on Friday, we have received criticism of the documentation in a number of ways which, quite frankly, are completely irrelevant and miss the point.
For example, it has been asserted that a “Notice of Potential Liability” is a statutory instrument under the Tenements (Scotland) Act 2004. That may be so, but it has no bearing on the matter at hand.
I do not profess—nor do I desire—to be a solicitor. Nor am I confined to issuing correspondence only in a statutory capacity. Friday’s document simply gave forewarning (Notice) of a possible (Potential) breach, for which there may be accountability (Liability). It was therefore a “Notice of Potential Liability” in the ordinary and literal sense of those words, in plain and simple English.
Its purpose was, and remains, to ensure that the Council cannot later plead ignorance of the statutory and fiduciary constraints upon its actions in relation to the inalienable Common Good of Dumfries. It serves to establish that you were placed on actual notice and that any subsequent disregard of due process may result in engagement with whichever oversight or statutory bodies are appropriate, depending on what transpires hereafter.
No amount of technical inconsistency can detract from the basic, core tenets of the notice.
The people of Dumfries, whose Common Good land is being appropriated—against the wishes of many—deserve to know why the Council has exempted itself from due process. If those reasons cannot be adequately justified to the public forthwith, they will in due course have to be explained in open court, before a Sheriff, at a hearing the public may attend—meaning that they will be given the opportunity to hear that reasoning in any case. As such, there can be no argument for withholding that reasoning from the very people whose land is at stake.
I trust this sufficiently clarifies the matter.
Kind regards,
MJ Sutherland
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Dear Dumfries and Galloway Council,
Please pass this on to the person who conducts Freedom of Information reviews.
With regards to the response to Q2, I appreciate that you are applying the P.I.T. on this occasion; however, I do believe that I am entitled to ask for the following:
1. The date(s) of the internal correspondence to/from legal services, including date of the decision that s.75(2) was unnecessary.
2. The names of the council officer(s) involved, both in the legal department and the council officer(s) who contacted them.
3. The name and position of the council solicitor responsible for the decision.
If the officers involved were not of a high enough level to be named in FOI, please provide their job title + department.
Yours faithfully,
Mike Sutherland
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Dear FOI,
This morning I issued a follow-up email to Vlad Valiente, DGC’s Monitoring Officer, which, amongst other things, stated:
“The people of Dumfries, whose Common Good land is being appropriated—against the wishes of many—deserve to know why the Council has exempted itself from due process. If those reasons cannot be adequately justified to the public forthwith, they will in due course have to be explained in open court, before a Sheriff, at a hearing the public may attend—meaning that they will be given the opportunity to hear that reasoning in any case. As such, there can be no argument for withholding that reasoning from the very people whose land is at stake.”
With this in mind, I would like to add the following to my request for internal review:
4. Given that the council’s reasons for exempting itself from due process will ultimately have to be explained in a public forum anyway, I can see no reason for withholding that information. Therefore, I ask that the council drops its exception under P.I.T. and provides their justification for avoiding section 75(2) of the Local Government (Scotland) Act 1973.
This will help to avoid any unnecessary time and expense in taking the matter to court.
Yours sincerely,
Mike Sutherland