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Decision 298/2024

Decision Notice 298/2024: Specified premises in Dunfermline

Authority: Fife Council
Case Ref: 202201099


Summary

The Applicant asked the Authority for information concerning specified premises in Dunfermline.  The Authority

disclosed information in response to the request.  The Commissioner investigated and found that the Authority had

failed to fully respond to the request.  He required the Authority to reconsider the request and issue a revised

review outcome.


Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1) (General entitlement) and 47(1) and (2)

(Application for decision by Commissioner)


Background

1.    On 18 January 2022, the Applicant made a request for information to the Authority.  He asked for:

“[All] correspondence, minutes, documents etc., regarding [specified address], and the premises above the ground

floor of that address that has a postal address of [specified address].”

2.    The Authority wrote to the Applicant on 19 January 2022, asking him to clarify his request.  The Authority

asked the Applicant to advise it of the names of employees or areas of the Authority where relevant information

may be held and to advise it of a subject matter and timescale for the information requested.

3.    On the same day, the Applicant responded to the Authority’s request for clarification.  He explained that

he had been advised that the premised specified in his request would be used to carry out several activities that

would normally be the remit of the Authority.  He clarified that he was interested in information relating mainly

but not only to the setting up of Dunfermline First, First Dunfermline and Dunfermline Delivers as Arms-Length

Organisations (ALEOs) of the Authority in relation to the premises specified in his request and to their duties as

ALEOs.

4.    The Authority responded on 18 February 2022.  It disclosed some information in response to his request and

withheld some information from disclosure under the exemptions in sections 38(1)(a) and section 38(1)(b) of FOISA.  

As part of its duty under section 15 of FOISA to provide advice and assistance, the Authority advised the

Applicant that he could submit a subject access request to obtain the information withheld under the exemption in

section 38(1)(a) of FOISA.

5.    On the same day, the Applicant wrote to the Authority requesting a review of its decision.  He stated that

he was dissatisfied with the decision because he considered the Authority’s response was incomplete and explained

that:

“For the avoidance of doubt, I would expect to see all correspondence, meetings, agreements, etc. between [the

Authority] and the ALEO’s involved in the above premises, namely Dunfermline First, First Dunfermline and

Dunfermline Delivers, but not limited to those bodies.”

6.    The Authority notified the Applicant of the outcome of its review outcome on 31 March 2022, in the

following terms:

  • it noted that the Applicant was interested in information “on the set up and financial monitoring of community groups” that operated 

    out of the premises specified in his request.  As part of its duty under section 15 of FOISA to advise and assist, it explained that Dunfermline First, First Dunfermline and Dunfermline Delivers were not owned by the Authority, nor did they operate as ALEOs

  • it confirmed that it did enter into a Business Improvement District Agreement with Dunfermline Delivers,

which agreed certain funding for that group.  It disclosed a copy of that agreement, as well as an extract of the

Local Community Planning budget listing grants made to Dunfermline Delivers and copies of the relevant Committee

agenda papers and minutes

  • it confirmed that it held no further financial monitoring information

  • it disclosed other emails and correspondence (subject to redactions under section 38(1)(b) of FOISA) it considered fell 

    within the scope of the request, which it stated it had interpreted as being for:

“[All] correspondence directly to or from any community groups operating out of [specified premises] and all

minutes of meetings, agreements etc. relating to the set up and financial monitoring of those community groups.”

  • As part of its duty under section 15 of FOISA to advise and assist, it confirmed that it had sold the premises specified in the request and it attached a copy of the updated Title Sheet

7.    On 4 October 2022, the Applicant wrote to the Commissioner, applying for a decision in terms of section

47(1) of FOISA.  He stated he was dissatisfied with the outcome of the Authority’s review because he considered

that the Authority had failed to fully respond to his request.


Investigation

8.    The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the

power to carry out an investigation.

9.    On 21 October 2022, and in line with section 49(3)(a) of FOISA, the Commissioner gave the Authority notice

in writing of the application and invited its comments.  

10.    The Authority provided comments, and the case was subsequently allocated to an investigating officer.

11.    While the Authority withheld some information under section 38(1) of FOISA, the Applicant did not

challenge this in his application.  The Commissioner’s decision will therefore only consider whether the Authority

identified and located all relevant information relative to the Applicant’s request.


Commissioner’s analysis and findings

12.    The Commissioner has considered the submissions made by the Applicant and the Authority.  

Section 1(1) of FOISA – General entitlement

13.    Section 1(1) of FOISA provides that a person who requests information from a

Scottish public authority which holds it is entitled to be given that information by

the authority, subject to qualifications which, by virtue of section (6) of FOISA,

allow Scottish public authorities to withhold information or charge a fee for it.  The

qualifications contained in 1(6) are not applicable in this case.

14.    The information to be given is that held by the authority at the time the request is received, as defined

by section 1(4) of FOISA.

15.    The standard of proof to determine whether a Scottish public authority holds the information is the civil

standard of the balance of probabilities.  In determining where the balance of probabilities lies, the

Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public

authority.  

16.    The Commissioner also considers, where appropriate, any reasons offered by the public authority to explain

why it does not hold the information.  While it may be relevant as part of this exercise to explore expectations

about what information the authority should hold, ultimately the Commissioner’s role is to determine what relevant

information is (or was, at the time the request was received) held by the public authority.  

The Applicant’s submissions

17.    The Applicant submitted that he did not believe the Authority had provided him with all relevant

information falling within the scope of his request.  

18.    Specifically, the Applicant expressed concerned that:

(i)    he had been given no information “about the genesis of the Hub” at the specified premises

(ii)    he had received “practically nothing” regarding ongoing calls on public funds to manage and operate the

specified premises

(iii)    he had not been provided with minutes of meetings at which it decided to change the nature of the facility

from charitable to commercial

(iv)    he had not been supplied with information relating to the decision to sell the specified property

(including details of the process whereby that sale was carried out and the evaluation of bids)

19.    The Applicant stated that he wanted to know “the full story” to allow him to make a complaint to Audit

Scotland, but he had been prevented from doing so “by a lack of pertinent information” received from the Authority

in response to his request.  He also stated that the bulk of the information provided was superfluous.

The Authority’s submissions

20.    The Authority position at review outcome is rehearsed earlier.  In its submissions to the Commissioner,

the Authority responded to points raised by the Applicant in his application (as set out above at paragraph 18).

21.    In response to point (i), the Authority stated that it held no information as it “did not set up the

community group” (which was, as it explained in its review outcome, an “independent company”).

22.    In response to point (ii), the Authority confirmed that all the information it held had been provided in

the form of minutes, along with the details of specific pages within minutes where relevant information could be

found.  The Authority also noted that it had provided funding details in its initial response.

23.    In response to point (iii), the Authority reiterated that it held no information as the community group

was an independent company.

24.    In response to point (iv), the Authority stated that:

“The nature of [the Applicant’s] request made it clear he was interested in information on the set up and

financial monitoring of the community groups that operated out of the property.  Therefore, it is believed that it

was a reasonable interpretation of his request to limit it to this information.”

25.    In response to the Applicant stating that the bulk of the information it provided was “superfluous”, the

Authority stated that the information provided all contained details of the specified premises and that its

searches did not rely on the specified premises as a “specific term” but went further in order to provide all

relevant information held falling within the scope of the request.

The Commissioner’s view

26.    The Commissioner has carefully considered the terms of the Applicant’s initial request and the

clarifications he provided to the Authority prior to its initial response and as part of his requirement for

review.

27.    Given the nature of the Applicant’s original request, the Commissioner considers it was appropriate for

the Authority to have sought clarification.  He welcomes the Authority’s engagement with the Applicant in this

respect.

28.    While the Applicant clarified his request prior to the Authority’s initial response, the Commissioner does

not consider that his clarification was particularly clear.  However, the Applicant did clearly set out in his

requirement for review that he was seeking the following information:

“For the avoidance of doubt, I would expect to see all correspondence, meetings, agreements, etc. between [the

Authority] and the LEO’s involved in the above premises, namely Dunfermline First, First Dunfermline and

Dunfermline Delivers, but not limited to those bodies.”

29.    Despite this, the Authority confirmed in its review response that it had interpreted the Applicant’s

request as being for:

“[All] correspondence directly to or from any community groups operating out of [specified premises] and all

minutes of meetings, agreements etc. relating to the set up and financial monitoring of those community groups.”

[emphasis added]

30.    By limiting the scope of the request to the “set up and financial monitoring” of the groups specified by

the Applicant, the Commissioner does not consider that the Authority accurately interpreted the Applicant’s

request.  He cannot, therefore, find that the Authority has discharged its duties under section 1(1) of FOISA in

relation to the Applicant’s request.

31.    Notwithstanding the Authority’s interpretation of the request, it falls to the Authority to persuade the

Commissioner, with reference to adequate, relevant descriptions and evidence, that it holds no more information

than it has identified and located in response to the request.  The Commissioner is not satisfied that the

Authority has achieved this.  Specifically, the Commissioner finds that the Authority’s submissions on searches

fall short by failing to adequately describe the searches it carried out or to provide any real detail or evidence

of those searches.

32.    When the Commissioner requested comments from the Authority, he asked it to read his guidance on what is

needed from public authorities in order for him to come to a decision. In respect of a “incomplete response”, the

Commissioner’s guidance specifically states that he requires the following information:

  • Which searches were carried out, including:

-   search terms used and timeframe searched against; why these were considered likely to retrieve the

information

-    who carried out the searches and why were they the people best placed to carry out the searches

-    which sets of records or data were searched (information may be held on WhatsApp, mobile phones, etc.)

  • If no searches were carried out, why did you consider no searches were needed?

33.    In the circumstances, the Commissioner cannot uphold the Authority’s claim that it does not hold any

further information relevant to the Applicant’s request.

34.    The Commissioner therefore finds that the Authority failed to comply with section 1(1) of FOISA, and in

doing so provided an incomplete response to the Applicant.  He requires the Authority to issue the Applicant with

a revised review outcome.

35.    Given the terms of the Applicant’s clarified request and some of the information he has expressed a

specific interest in receiving, the Commissioner would suggest to the Applicant, notwithstanding the outcome of

the Authority’s review, that he consider making a new, more focused, request to the Authority.  He considers it

unlikely that some of the information the Applicant has expressed a specific interest in receiving (e.g. relating

to the decision to sell the specified property) will fall within the scope of his clarified request.

36.    The Commissioner would urge requesters to take care to ensure that they are as specific as they can be

when making requests for information.  Information requests that are vague or too wide-ranging can lead to

requests being refused on cost grounds or requesters being provided with information that is of no interest to

them.  Equally, when responding to a request from a public authority to clarify a request, requesters should take

care to clearly specify the information that they are interested in receiving while, at the same time, not

inadvertently excluding other information that is of interest to them.


Decision

The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland)

Act 2002 (FOISA) in responding to the information request made by the Applicant.

In failing to accurately interpret the Applicant’s request and in failing to satisfy the Commissioner that it does

not hold any further information in addition to that disclosed already, the Authority failed to comply with Part 1

(and specifically section 1(1)) of FOISA.

The Commissioner therefore requires the Authority to carry out a fresh review and to issue a revised review

outcome to the Applicant, by 3 February 2025.


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

 

18 December 2024