Decision 239/2024: Demolition of the Christie Clock

Authority: Stirling Council
Case Ref: 202400362

Summary

The Applicant asked the Authority for information relating to the demolition of the Christie Clock.  The Authority withheld the requested information under various exceptions in the EIRs.  During the Commissioner’s investigation, the Authority disclosed some information.  The Commissioner investigated and found that the Authority had generally complied with the EIRs in responding to the request, but he required it to disclose a small amount of further information.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 39(2) (Health, safety and 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”, “environmental information,” and “the Commissioner”) (Interpretation); 5(1) and 5(2) (Duty to make environmental information available on request); 10(1), (2), (4)(e) and (5)(d) and (f) (Exceptions from duty to make environmental information available); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).

Local Government (Scotland) Act 1973 (Local Government Act) Schedule 7A Part 1 (1) and (6) (Descriptions of Exempt Information).

Background

1. On 14 December 2023, the Applicant made a request for information to the Authority.  He asked for all the information and evidence gathered and documented by the team producing the Authority’s CEO report into the demolition of the Christie Clock.

2. The Authority responded on 15 January 2024, informing the Applicant that it had considered the request under the EIRs and had applied section 39(2) of FOISA.  The Authority withheld the information requested under the exceptions in regulations 10(5)(f) and 10(4)(e) of the EIRs.

3. On 25 January 2024, the Applicant wrote to the Authority requesting a review of its decision.  The Applicant stated that he was dissatisfied with the Authority’s decision because he considered it unlikely that all the information withheld would, if disclosed, be detrimental to third party interests, that the names of third parties

could be redacted and that, in any event, the public interest favoured disclosure given the level of interest in the demolition.

4. The Authority notified the Applicant of the outcome of its review on 16 February 2024.  The Authority upheld its original decision, but stated that some of the information requested was also excepted from disclosure under regulations 10(5)(b) and 10(5)(d) of the EIRs.

5. On the same day, 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 did not consider the exceptions in question applied and, even if they did, he considered the public interest favoured disclosure.

Investigation

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.

7. On 26 March 2024, the Authority was notified in writing that the Applicant had made a valid application.  The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information, and the case was allocated to an investigating officer.

8. 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 on the exceptions it had applied to withhold the information requested.

9. On 9 April 2024, the Authority reassessed its position and disclosed some information, which was already in the public domain, to the Applicant.  On 28 June 2024, the Authority again reassessed its position and disclosed further information to the Applicant, subject to personal data redactions, that it no longer considered to be sensitive.

10. The Applicant confirmed that he did not require a decision in relation to the documents the Authority disclosed to him.  The Commissioner will therefore not consider those documents further in his decision.

Commissioner’s analysis and findings

11. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.  

Handling in terms of the EIRs

12. The Authority considered the Applicant's request under the EIRs, having concluded that the information requested was environmental information (as defined in regulation 2(1) of the EIRs).

13. Where information falls within the scope of this definition, a person has a right to access it (and the public authority has a corresponding obligation to respond) under the EIRs, subject to the various restrictions and exceptions contained in the EIRs.

14. The information requested appears to fall clearly within the scope of the definition of environmental information contained in regulation 2(1) of the EIRs (specifically paragraphs (a) and (c) of that definition as the information relates to measures affecting the built environment).

15. The Applicant made no comment on the Authority’s application of the EIRs in this case.

Section 39(2) of FOISA – Environmental information

16. 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.  

17. In this case, the Commissioner accepts that the Authority was entitled to apply this exemption to the information withheld under FOISA, given his conclusion that it is properly classified as environmental information.

18. As there is a statutory right of access to environmental information available to the Applicant in this case, the Commissioner accepts, in all the circumstances, that the public interest in maintaining this exemption (and responding to the request under the EIRs) outweighs any public interest in disclosing the information under FOISA.  Both regimes are intended to promote public access to information and there would appear to be no reason why (in this particular case) disclosure of the information should be 
more likely under FOISA than under the EIRs.

19. The Commissioner therefore concludes that the Authority was correct to apply section 39(2) of FOISA and consider the Applicant's information request under the EIRs.

Regulation 5(1) of the EIRs – Duty to make environmental information available

20. 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.

21. 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)).

Regulation 10(5)(b)

22. The Authority withheld all of the documents it continued to withhold under the exception in regulation 10(5)(b) of the EIRs.

23. Under regulation 10(5)(b) of the EIRs, a Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the course of justice, the ability of an individual to receive a fair trial or the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature.

24. As with all exceptions in regulation 10 of the EIRs, it is subject to the public interest test in regulation 10(1)(b) and, in line with regulation 10(1)(a), must be interpreted in a restrictive way with a presumption in favour of disclosure.

25. Although there is no definition of "substantial prejudice" in the EIRs, the standard to be met in applying the test is high.  The word "substantial" is important here: the harm caused, or likely to be caused, by disclosure must be of real and demonstrable significance.  The risk of harm must be real or very likely, not simply a remote or hypothetical possibility.

The Authority's submissions about the exception

26. The Authority provided detailed submissions explaining why it considered the information in question was properly excepted from disclosure under regulation 10(5)(b) of the EIRs.

27. The Commissioner is unable to fully reproduce or summarise those submissions, within this decision notice, without breaching the obligation of confidentiality in section 45 of FOISA.

28. However, the Authority confirmed that the withheld information was evidence that informed an internal review of the circumstances leading to the demolition of the Christie Clock.  This internal review considered, among other things, whether disciplinary investigation was warranted.

29. The Authority submitted that disclosure of the information withheld under the exception in regulation 10(5)(b) of the EIRs would prejudice its ability to conduct a disciplinary investigation.

30. The Authority explained that it was imperative for there to be full and frank disclosure of information by witnesses to allow for a fair investigation to be conducted and for an accurate and balanced report to be produced.  The Authority considered that full and frank disclosure would be impeded if it were to disclose the withheld information.

31. The Authority also provided specific comments on how this prejudice would arise from documents that might initially appear to be purely factual.

The Applicant's submissions about the exception

32. The Applicant did not agree that the exception applied.

The Commissioner's view about the exception

33. Having considered the withheld information, the terms of the request and the Authority’s submissions, the Commissioner accepts that the withheld information is material which was considered by the Authority when determining whether disciplinary action might be warranted in relation to the demolition of the Christie Clock.  As a result, the Commissioner considers the withheld information is highly likely to be considered as part of any possible disciplinary investigation.

34. Section 45 of FOISA makes it a criminal offence for the Commissioner or a member of his staff to disclose without lawful authority information which he has obtained, or which has been furnished to him, under or for the purposes of FOISA, if the information is not at the time of the disclosure, and has not previously been, available to the public from another source

35. In the circumstances, the Commissioner does not consider it possible to set out in greater detail the reasons for his conclusions without potentially breaching section 45 of FOISA.

36. In this case, having considered all relevant submissions and the content of the withheld information, the Commissioner is satisfied that the withheld information falls within the definition of regulation 10(5)(b) of the EIRs as it is directly relevant to the consideration (and potential initiation) of a future disciplinary inquiry by the Authority (and thus to its ability to conduct such an inquiry).

37. In the circumstances, the Commissioner is satisfied that there would have been a reasonable risk of substantial prejudice to the Authority’s ability to conduct a disciplinary inquiry had the majority of the withheld information been disclosed in response to the Applicant’s information request or his requirement for review.  

38. However, the Commissioner does not accept that a reasonable risk of substantial prejudice to the Authority’s ability to conduct a disciplinary inquiry would result from the disclosure of two specific documents:

• Document 13 – a report by a contractor, consisting of both the contractor’s factual observations and their assessment of this information.  In all the circumstances, the Commissioner agrees that disclosing the contractor’s assessment would, or would be likely to, prejudice the Authority’s investigation.  However, the Commissioner does not agree that disclosure of the factual information informing this assessment would, or would be likely to, result in the harm claimed by the Authority.  The Commissioner therefore finds that the Authority was entitled to rely upon regulation 10(5)(b) for the assessment in Document 13 only.
• Document 18 – an email providing a brief and factual description of a video, which the Authority has disclosed to the Applicant.  Given the Authority has disclosed the video, and the observation within the email is factual, the Commissioner cannot identify any prejudice to a disciplinary process from disclosing Document 18.

39. As this exception is subject to the public interest test, the Commissioner must go on to consider the public interest test in relation to the information properly excepted (i.e. the withheld information other than Documents 13 and 18) from disclosure under regulation 10(5)(b) of the EIRs.

40. Documents 13 and 18 were both also withheld under the exceptions in regulations 10(4)(e), 10(5)(d) and 10(5)(f).  As the Commissioner has found that the Authority was not entitled to rely on the exception in regulation 10(5)(b) for some information in Document 13 and for Document 18, the Commissioner must consider each of the other exceptions applied in turn.

The Authority’s submissions on the public interest

41. The Authority recognised that there was a significant public interest in the demolition of the Christie Clock.  The Authority explained that it had sought to publish as much information as it could in the interests of openness and transparency in the report made to the councillors on its audit committee on the demolition.

42. While this publication went some way to meeting the public interest in this matter, the Authority considered that, for the withheld information, there was a greater public interest in avoiding prejudice to its disciplinary investigations.

43. The Authority also submitted that it had a duty of care towards its employees, including those facing possible disciplinary action.  The Authority considered that disclosure of this information would not be fair to those who might be subject to possible disciplinary action (especially as no conclusion had been reached).

The Applicant’s submissions on the public interest

44. The Applicant submitted that disclosure would enhance scrutiny of decision-making processes and thereby improve accountability.  The Applicant submitted that the report to the CEO should have been published and explained that his request for further information was grounded in the Authority’s failure to transparently publish this report.

45. The Applicant also suggested that the Authority was withholding information to avoid embarrassment.

The Commissioner’s view on the public interest

46. The Commissioner accepts that, where complaints arise about the way in which work has been done by the Authority or contractors acting on its behalf, there is a public interest in the Authority being able to carry out comprehensive, balanced and robust investigations into those complaints.  Such investigations ensure that complaints are thoroughly examined, and suitable conclusions are reached about the way in which public resources have been used.

47. In the Commissioner’s view, the context created by the progress of the investigations and the particular facts of the case must both be considered when considering whether it would be in the public interest to disclose information from such an investigation.

48. Where investigations involve consideration of staff conduct, there is a significant public interest in ensuring that the individuals whose actions are under scrutiny are treated with fairness and dignity.

49. While the Commissioner recognises the value of public scrutiny, he also recognises that the Authority must have a private space, in appropriate circumstances, to conduct its own confidential investigation and reflect upon matters of serious public concern.

50. Having considered both the submissions of the Applicant and the Authority, the Commissioner finds that, in this case, there is a greater public interest in upholding the exception than in disclosing the information in question.

51. The Commissioner is therefore satisfied that the Authority was, and is, entitled to withhold the information in question under the exception in regulation 10(5)(b) of the EIRs.

Regulation 10(4)(e) – Internal communications

52. Regulation 10(4)(e) allows authorities to refuse to disclose internal communications.  This is a class-based exception, meaning that there is no need to consider whether disclosure of the communication would cause harm before applying the exception.

53. For information to fall within the scope of the exception in regulation 10(4)(e) of the EIRs it need only be established that the information is an internal communication.

54. As with all exceptions in regulation 10 of the EIRs, it is subject to the public interest test in regulation 10(1)(b) and, in line with regulation 10(1)(a), must be interpreted in a restrictive way with a presumption in favour of disclosure.

55. In interpreting the EIRs, the Commissioner must take account of the Aarhus Convention Implementation Guide (the Guide). In relation to the application of regulation 10(4)(e) of the EIRs, the Commissioner notes that (at page 85) the Guide specifically states that “studies commissioned by public authorities from related, but independent, entities” cannot be considered to be internal communications.

56. Document 13 is a report prepared by a contractor for the Authority into the state of the Christie Clock.

57. The Commissioner considers that it is not the intention of the Aarhus Convention, or the EIRs, that the exception in regulation 10(4)(e) should extend to every communication between a public authority and its external contractors/consultants.  There may be limited categories of communications with third parties which do qualify under this exception – such as privileged communications with an external legal advisor – but they will be limited.  

58. In Decision 089/2016, the Commissioner found that a report prepared by a contractor for a local authority on the state of a structure could not be considered internal correspondence for the purposes of regulation 10(4)(e) of the EIRs.

59. Having considered the content of Document 13, the Commissioner finds that it cannot be considered internal correspondence for the purposes of regulation 10(4)(e) of the EIRs.  He is therefore not required to go on to consider the public interest test in regulation 10(1)(b) for this information.

60. Document 18 is an email exchanged between two members of the Authority’s staff.  As a result, the Commissioner accepts that Document 18 comprises internal communications for the purposes of regulation 10(4)(e) of the EIRs.  He must therefore go on to consider the public interest test in regulation 10(1)(b) for this information.

The Commissioner’s view on the public interest

61. The Commissioner has carefully considered the public interests arguments provided by the Authority and the Applicant, which he set out earlier in his decision notice.

62. As rehearsed earlier, the Commissioner does not accept that disclosure of Document 18 would, or would be likely to, give rise to substantial prejudice of the sort claimed by the Authority.

63. The Commissioner is therefore satisfied that the public interest in making Document 18 available is not outweighed by that in maintaining the exception in regulation 10(4)(e) of the EIRs.  Consequently, he finds that the Authority was not entitled to withhold the information in Document 18 under the exception in regulation 10(4)(e) of the EIRs.

Regulation 10(5)(f) – Third party interests

64. Regulation 10(5)(f) of the EIRs provides that a Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the interests of the person who provided that information, where that person -

(i) was not under, and could not have been put under, any legal obligation to supply the information;

(ii) did not supply it in circumstances such that it could, apart from the EIRs, be made available; and

(iii) has not consented to its disclosure.

65. This exception can only be applied if all three of the above tests are satisfied.

66. As with all exceptions in regulation 10 of the EIRs, it is subject to the public interest test in regulation 10(1)(b) and, in line with regulation 10(1)(a), must be interpreted in a restrictive way with a presumption in favour of disclosure.

Does regulation 10(5)(f) apply in this case?

67. A number of factors should be addressed in considering whether this exception applies. These include:

(i) Was the information provided by a third party?

(ii) Was the provider, or could the provider be, required by law to provide it?

(iii) Is the information otherwise publicly available?

(iv) Has the provider consented to disclosure?

(v) Would disclosure of the information cause, or be likely to cause, substantial harm to the interests of the provider?

Was the information provided by a third party?

68. Document 18 is an internal email.  Having reviewed its content, the Commissioner cannot uphold the application of the exception in regulation 10(5)(f) of the EIRs to Document 18.

69. Document 13 is a report provided by a contractor to the Authority.  As rehearsed earlier, reports of this nature are not considered internal for the purposes of the EIRs and, having reviewed its content, the Commissioner is satisfied that Document 13 was provided to the Authority by a third party.

Was the provider, or could the provider be, third party required by law to provide the information?

70. Having considered the submissions from the Authority and the content of Document 13, the Commissioner is satisfied that it is not information that the providers were required, or could have been required, to provide by law.

Is the information otherwise publicly available?

71. Having considered the submissions from the Authority and the content of Document 13, the Commissioner is satisfied that the withheld information is not (and has not been) otherwise available to the public.

Has the provider consented to disclosure?

72. The issue regarding consent is also covered by the Aarhus Convention Implementation Guide, which (at page 89) states:

"Not only must the information in question qualify as voluntarily supplied information, the person that provided it must have denied consent to have it released to the public."

73. The Commissioner has also found in previous decisions that specific refusal of consent is fundamental to the application of regulation 10(5)(f) of the EIRs.  This is also covered in his guidance on the application of regulation 10(5)(f) of the EIRs.

74. Generally, in the Commissioner's view, consent (and its refusal) will involve an active expression of the wishes of the individual concerned and will be specific to the circumstances for which it was sought.  Generally, therefore, the issue must be approached on a case-by-case basis and clearly apply to the information in question.

75. During the investigation, the Authority was asked to confirm whether the third party had declined consent to disclose the information in Document 13 (to which it had applied regulation 10(5)(f) of the EIRs).

76. The Authority explained that it had not specifically consulted with the contractor in question as to whether they would consent to disclosure.  However, the Authority considered that there was an implicit understanding that information gathered in the preparation of the report to the Chief Executive would only be used for the purposes of the investigation feeding into the report to the Chief Executive.

77. As rehearsed earlier, the exception in regulation 10(5)(f) of the EIRs can only be applied if all three of the tests are satisfied.  In this case, in the absence of a specific refusal of consent from the relevant third party, the Commissioner therefore does not accept that the Authority was entitled to apply the exception in regulation 10(5)(f) to the withheld information.

78. In any event, the Commissioner is not persuaded by the Authority’s argument that the information within Document 13 was provided with an expectation of confidentiality arising from an investigation.  While he accepts that Document 13 informed the report to the Chief Executive, it was commissioned by, and delivered to, the Authority prior to the demolition of Christie Clock and therefore prior to any investigation relating to its demolition.

Regulation 10(5)(d) – Confidentiality of proceedings provided for by law

79. Regulation 10(5)(d) provides that a Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the confidentiality of the proceedings of any public authority where such confidentiality is provided for by law.

80. As with all exceptions in regulation 10 of the EIRs, it is subject to the public interest test in regulation 10(1)(b) and, in line with regulation 10(1)(a), must be interpreted in a restrictive way with a presumption in favour of disclosure.

81. The first matter for the Commissioner to consider is whether the information relates to proceedings of the Authority, the confidentiality of which is provided for by law.  He must then consider whether disclosure of the information would, or would be likely to, prejudice substantially the confidentiality of those proceedings.

82. The Aarhus Convention Implementation Guide notes (at page 87) that the Convention does not comprehensively define "proceedings of public authorities".  It suggests that one interpretation is that these may be proceedings concerning the internal operations of a public authority rather than substantive proceedings conducted by the public authority in its area of competence

83. The Authority submitted that the report made to the Chief Executive was considered an exempt item under Schedule 7A of the Local Government (Scotland) Act 1973 (the Local Government Act), which lists certain types of information that a local authority is not required to disclose under the access to information provisions of the Local Government Act.

84. The Authority submitted that the specific conditions that apply to this information is that the report relates to a particular employee or office-holder and relates to the business or financial affairs of a person.

85. The Commissioner agrees that the process for reporting to the Authority’s Chief Executive and to the Audit Committee, as a formal process for addressing a significant incident and informing the Authority’s response, constitute proceedings for the purposes of the EIRs.

86. The Commissioner also agrees that Schedule 7A of the Local Government Act provides for information not being published if it relates to a particular employee or office-holder or relates to the business or financial affairs of any particular person (other than the Authority).

87. However, the Commissioner does not agree that Document 13 or Document 18 fall within this description.  Both documents relate, not to individuals or businesses, but to the Christie Clock itself.

88. The Authority explained that it considered that the background papers that informed the report were exempt because the report to the Chief Executive was exempt

89. The Commissioner does not agree that this follows.  Information must be considered on a case-by-case basis, considering in each instance whether material is excepted and, if so, where the public interest lies.  It does not follow from information being “exempt” under Schedule 7A that the information will necessarily fall to be withheld under any of the exceptions in the EIRs (or that the information can necessarily be considered confidential).  (The Commissioner would urge local authorities to consider carefully whether Schedule 7A actually has any relevance to the disclosure of information under FOISA and/or the EIRs, before citing it in support of information being withheld in a particular case.)

90. The Commissioner notes that Document 13 was prepared by a contractor in the course of their employment.  However, Document 13 does not appear to describe any substantial elements of the contractor’s business (e.g. such as pricing, availability or business plans).

91. The Commissioner does not agree that the mere fact that a document was prepared in the course of an organisation’s business means it relates to business affairs.

92. Document 18, as rehearsed earlier, describes a video of the Christie Clock – it does not describe any employee, office-holder or any financial or business affairs.  

93. In any event, the Commissioner does not consider, given their content, that disclosure of either Document 13 or Document 18 would, or would be likely to, prejudice substantially the confidentiality of the Authority’s proceedings.

94. Consequently, the Commissioner finds that the Authority was not entitled to withhold Document 18 or the remaining information in Document 13 under the exception in regulation 10(5)(d) of the EIRs.

Cumulative public interest

95. As outlined above, the Authority applied the exceptions in regulations 10(4)(e), 10(5)(b), 10(5)(d) and 10(5)(f) of the EIRs to the same information.  Where authorities apply more than one exception to the same information, the Commissioner must have regard to the judgment of the European Court of Justice (ECJ) in the case of OFCOM v the Information Commissioner [2011] EUECJ C-71/10.

96. In that judgment, the ECJ considered how the public interest test should be addressed where more than one exception has been found to apply to the same information. The ECJ concluded that, in such cases, a two stage public interest test should be carried out:

(i) The first step is to consider, in relation to each exception judged to apply, whether the public interest in disclosing that information is outweighed by the public interest in maintaining the exception.

(ii) The second test is then to cumulatively weigh all grounds for refusing to disclose the information against all of the public interests served by disclosure, and to come to a decision as to whether the information should be disclosed.

97. In terms of the cumulative public interest, the Authority submitted that its position was that overall, taking all of the exceptions relied upon, the public interest in releasing the information sought did not outweigh that in maintaining the exceptions.

98. The Commissioner has already found that no exception under the EIRs applied to certain sections of Document 13 (except insofar as they contain personal information) and that the public interest favoured withholding the majority of the information withheld under regulation 10(5)(b) of the EIRs.

99. Document 18 is the only document, therefore, to which the cumulative public interest could potentially be relevant.  

100. However, as the Commissioner has only found that a single exception (regulation 10(4)(e) of the EIRs) applied to Document 18, he has not found it necessary to consider the cumulative public interest test on this occasion.

Decision

The Commissioner finds that the Authority partially complied with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the Applicant.  

The Commissioner finds that by correctly withholding information under regulation 10(5)(b), the Authority complied with the EIRs.

However, by incorrectly withholding certain information under regulations 10(5)(b), 10(4)(e), 10(5)(f) and 10(5)(d), the Authority failed to comply with regulation 5(1) of the EIRs

The Commissioner therefore requires the Authority to disclose the wrongly withheld information, subject to the redaction of any personal information, to the Applicant, by Friday 13 December.

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

29 October 2024