Decision 073/2025: Information about access to a specified property
Authority: Clackmannanshire Council
Case Ref: 202400300
Summary
The Applicant asked the Authority for information about access to a specified property, including copies of all risk assessments and engineers’ reports. The Authority considered the request under FOISA and disclosed some information but withheld other information under exemptions in FOISA. The Commissioner investigated and found that the Authority had considered the request under the wrong legislation. The requested information was environmental, and the Authority should have considered the request under the EIRs. The Commissioner required the Authority to respond to the request under the EIRs and to carry out fresh searches.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2), (4) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 39(2) (Health, safety and the environment); 47(1) and (2) (Application for decision by Commissioner)
The Environmental Information (Scotland) Regulations 2004 (the EIRs) regulations 2(1) (Definition of “the Act”, “applicant”, “the Commissioner” and paragraphs (a), (c) and (f) of the definition of “environmental information”) (Interpretation); 5(1) (Duty to make environmental information available on request); 16 (Review by Scottish public authority); 17(1), (2)(a), (b) and (f) (Enforcement and appeal provisions)
Background
1. On 28 October 2023, the Applicant made a request for information to the Authority. He asked, further to an owners’ meeting on 19 October 2023, for information “about access to the property, including copies of all risk assessments and engineers’ reports”
2. The Authority did not respond to the request.
3. On 15 December 2023, the Applicant wrote to the Authority, requiring a review in respect of its failure to respond.
4. The Applicant did not receive a response to his requirement for review.
5. The Applicant wrote to the Commissioner on 20 January 2024, stating that he was dissatisfied with the Authority’s failure to respond and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.
6. In Decision 025/2024, the Commissioner found that the Authority had failed to respond to the Applicant’s request for information and requirement for review within the timescales laid down by sections 10(1) and 21(1) of FOISA.
7. The Authority notified the Applicant of the outcome of its review on 1 February 2024. It disclosed some information but withheld other information under the exemptions in sections 30(c) and 38 of FOISA.
8. On 25 February 2024, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA. By virtue of regulation 17 of the EIRs, Part 4 of FOISA applies to the enforcement of the EIRs as it applies to the enforcement of FOISA, subject to specified modifications. The Applicant stated that he was dissatisfied with the outcome of the Authority’s review because he disagreed that the cited exemptions by the Authority applied and because he believed that it held more information relevant to his request than it had located and provided to him.
Investigation
9. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
10. On 19 March 2024, and in line with section 49(3)(a) of FOISA, the Commissioner gave the Authority notice in writing of the application. The Authority was asked to send the Commissioner the information withheld from the Applicant.
11. On 2 April 2024, the Authority informed the Commissioner and the Applicant that it had changed position and was no longer relying on the exemption in section 30(c) of FOISA to withhold information from the Applicant. The Authority disclosed this information to the Applicant and provided the Commissioner with the remaining withheld information, which it withheld under the exemption in section 38(1)(b) of FOISA.
12. The case was subsequently allocated to an investigating officer.
13. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application. The Authority was invited to comment on this application and to answer specific questions, including whether it considered the information requested was environmental information and the searches it had carried out in response to the request.
Commissioner’s analysis and findings
14. The Commissioner has considered all the submissions made to him by the Applicant and the Authority.
FOISA or EIRs?
15. The relationship between FOISA and the EIRs was considered at length in Decision 218/2007. Broadly, in the light of that decision, the Commissioner's general position is as follows:
(i) The definition of what constitutes environmental information should not be viewed narrowly.
(ii) There are two separate statutory frameworks for access to environmental information and an authority is required to consider any request for environmental information under both FOISA and the EIRs.
(iii) Any request for environmental information therefore must be handled under the EIRs.
(iv) In responding to a request for environmental information under FOISA, an authority may claim the exemption in section 39(2).
(v) If the authority does not choose to claim the section 39(2) exemption, it must respond to the request fully under FOISA: by providing the information; withholding it under another exemption in Part 2; or claiming that it is not obliged to comply with the request by virtue of another provision in Part 1 (or a combination of these).
(vi) Where the Commissioner considers a request for environmental information has not been handled under the EIRs, he is entitled (and indeed obliged) to consider how it should have been handled under that regime.
16. Given the subject matter of the request (i.e. relating to the access of a building evacuated after the discovery of reinforced autoclave aerated concrete), the Commissioner asked the Authority whether it considered the information requested to be environmental information, as defined in regulation 2(1) of the EIRs.
17. In response, the Authority simply stated that the request had been handled under FOISA and offered no further comment on whether it considered it should have handled the request under the EIRs.
18. It is clear to the Commissioner from the subject matter of the request that information falling within the scope of the request would be environmental information, as defined in regulation 2(1) of the EIRs (particularly paragraphs (a), (c) and (f) of that definition).
19. Given that the information requested is properly considered to be environmental information, the Authority has a duty to consider it in terms of regulation 5(1) of the EIRs. In failing to do so, the Commissioner finds that the Authority failed to comply with regulation 5(1).
Section 39(2) of FOISA – environmental information
20. The exemption in section 39(2) of FOISA provides, in effect, that environmental information (as defined by regulation 2(1) of the EIRs) is exempt from disclosure under FOISA, thereby allowing any such information to be considered solely in terms of the EIRs.
21. The Commissioner finds that the Authority would have been entitled to apply this exemption to the request, given his conclusion that the information requested was properly classified as environmental information.
22. As there is a separate statutory right of access to environmental information available to the Applicant, the Commissioner also accepts that, in this case, the public interest in maintaining this exemption and in handling the request in line with the requirements of the EIRs outweighs any public interest in disclosing the information under FOISA.
Regulation 5(1) of the EIRs – Duty to make environmental information available
23. Regulation 5(1) of the EIRs requires a Scottish public authority which holds environmental information to make it available when requested to do so by any applicant. This obligation relates to information that is held by the authority when it receives a request.
24. On receipt of a request for environmental information, therefore, the authority must ascertain what information it holds falling within the scope of the request. Having done so, regulation 5(1) of the EIRs requires the authority to provide that information to the requester, unless a qualification in regulations 6 to 12 applies (regulation 5(2)(b)).
Information disclosed during the investigation
25. As stated above, the Authority notified the Applicant on 2 April 2024 that it was no longer relying on the exemption in section 30(c) of FOISA to withhold some of the information requested and it disclosed that information to him.
26. The Commissioner must find that the Authority has failed to comply with the requirements of regulation 5(1) of the EIRs, as it did not disclose this information when requested to do so by the Applicant.
Searches
27. The standard of proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities. In determining where the balance lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
28. In all cases, it falls to the public authority to persuade the Commissioner, with reference to adequate, relevant descriptions and evidence, that it does not hold the information (or holds no more information than it has identified and located in response to the request).
29. In this case, the Authority provided the Commissioner with insufficient evidence of the searches it undertook in response to the request. Specifically, it did not provide screenshots of the searches undertaken, nor did it detail the key terms used when carrying out these searches. Instead, it only described the searches.
30. As part of his application, the Applicant submitted that he believed the Authority failed to provide all of the information requested as “minutes of the meetings, emails and other correspondence, both internal to the [Authority] and externally” should have been provided.
31. The Commissioner has carefully considered the terms of the request, which asked for information about access to the property, including copies of all risk assessments and engineers’ reports.
32. While the request specifies certain information to be included as part of the response, it is not limited to that information alone. The Commissioner considers the request for information about access to the property encompasses the type of information identified by the Applicant in the preceding paragraph.
33. Having reviewed the Authority’s submissions on its searches, the Commissioner is not satisfied that it has provided sufficient evidence of searches undertaken for this information (particularly correspondence internal to the Authority). He finds that the Authority has failed to comply with regulation 5(1) of the EIRs in this respect.
Next steps
34. The Commissioner requires the Authority to provide a response to the Applicant’s requirement for review of 15 December 2023 in terms of regulation 16 of the EIRs. In doing so, the Authority must:
- consider carefully the terms of the request and ensure that its interpretation of the request is reasonable and fully addresses the request
- take adequate and proportionate steps to establish what information is held, using appropriate search terms and searching all locations and mediums where relevant information may be held
- retain evidence of those searches in the event of a further appeal to the Commissioner
- ensure it clearly identifies any information that is being withheld (to include any information that it was withholding under FOISA) and justifies and explains why that information is being withheld.
35. It is critical that the Authority retains evidence of searches in this case, and that it does so as a matter of course response to information requests. In all cases, authorities should take adequate and proportionate steps to establish what information is held (or is not held) and they should be able to explain, if challenged, why the searches they carried out were reasonable and likely to identify all relevant information – which will, in almost all cases, necessarily involve consideration of the evidence and outcome of those searches.
Decision
The Commissioner finds that the Authority failed to comply with the Environmental Information (Scotland) Regulations 2004 (the EIRs), specifically regulation 5(1), in responding to the Applicant’s information request.
The Commissioner requires the Authority to undertake fresh, adequate and proportionate searches for the information requested and provide a revised response to the Applicant’s requirement for review, in terms of regulation 16 of the EIRs, by 9 May 2025. In doing so, he requires the Authority to have regard to the conditions set out in paragraph 34 above.
Appeal
Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.
Enforcement
If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply. The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.
Euan McCulloch
Head of Enforcement
24 March 2025
