Edinburgh Spaces for People: Council criticised by watchdog over refusal to publish consultation responses

Scottish Information Commissioner finds Edinburgh council breached freedom of information regulations

Scotland's information watchdog has labelled Edinburgh council "contrary and perverse” after it refused to publish responses to a public consultation on a controversial Spaces for People scheme in the Capital.

The Scottish Information Commissioner ruled the council had breached environmental freedom of information regulations when it rejected a request by Morningside resident Paul Bailey for the comments made during a council engagement exercise with locals in September 2021 over its proposals for Braid Road and Comiston Road. The council had previously banned vehicles from travelling north on Braid Road and introduced protected cycle lanes on Comiston Road and was seeking views on potential changes, including four options for the reopening of Braid Road.

The letter sent to residents in the area said: “The council will publish all responses received to this activity, but will not publish individual names, email addresses or postcodes.” However, the responses were not published and the council refused Mr Bailey’s request for them, saying it was “manifestly unreasonable” because it would take around 92 hours to prepare the information for release.

The ban on cars travelling north on Braid Road was one of the most controversial Spaces for People measures. Picture: Lisa Ferguson .

In an official ruling, the commissioner said it was clear from the letter the council had intended to publish the responses. He continued: “Therefore, it seems contrary and perverse for it to then argue that to fulfil its own objective and intention would be manifestly unreasonable, when asked to do so in response to an information request. Arguably (at the time the applicant submitted his request), this information should already have been available for either publication or disclosure.”

The council told the commissioner a mistake had been made in the wording of the letter, which should have said that a “summary” of comments would be made available. But the commissioner said he was not satisfied that even this had been done. The report to the transport and environment committee on the consultation simply recorded the number of responses received and how the four Braid Road options had been ranked.

Mr Bailey pointed out to the commissioner that the council had published responses received to other consultations, but the council said that each consultation was considered on a case-by-case basis and that it had adopted a more cautious approach on publication of comments in order to minimise the risks around breaching data protection legislation. However, the commissioner said the authority could not use its cautious approach to argue that providing the information would therefore be an unreasonable burden. And he dismissed the council’s claim it would take 92 hours to prepare the material. “The commissioner is unable to accept that such an exercise would take five minutes per comment.”

Issuing his decision, the commissioner said he found the council had failed to comply with the Environmental Information (Scotland) Regulations 2004 and ordered it to respond to Mr Bailey’s request by August 10. Mr Bailey welcomed the ruling. He said: "The report was scathing. I was very confident the commissioner would find in our favour, but never expected him to use such strong language as ‘perverse’.”

He said that in December 2022 the council had published 155 pages of comments – 2,455 in total – from the public on three consultations: controlled parking zones, the closure of Bruntstane Road and priority parking. “So that would have taken them 204 hours to compile on their exaggerated reckoning.”

He added: “Transparency around responses to consultations is vital for public trust in the process. The council should urgently review their processes and training so they can efficiently and safely routinely publish comments gathered in consultations and engagements, without the public needing to submit freedom of information requests. In the meantime, I hope the council will release the comments as soon as possible and these will properly inform future decisions for Braid Road and Comiston Road.”

A council spokesperson said: “The council acknowledges the commissioner’s decision and will comply with it.”