Decision Notice 082/2024: Planning file
Authority: Highland Council
Case Ref: 202400221
Summary
The Applicant asked the Authority for a specific planning file. The Authority initially told the
Applicant that it did not hold the information requested. Following a review, the Authority claimed
that the information was excepted from disclosure because the request was formulated in too
general a manner. The Commissioner investigated and found that the Authority’s response failed
to comply with the EIRs, as it had failed to provide the Applicant with the required advice and
assistance. The Commissioner required the Authority to provide advice and assistance to the
Applicant and to issue a revised review outcome.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) section 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” and “the Commissioner”) (Interpretation); 2(2) (Definition of information
held); 5(1) (Duty to make environmental information available on request); 9 (Duty to provide
advice and assistance); 10(1), (2), and (4)(c) (Exceptions from duty to make environmental
information available); 17(1), (2)(a) and (b) (Enforcement and appeal provisions)
The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this
decision. The Appendix forms part of this decision.
Background
1. On 7 August 2023, the Applicant made a request for information to the Authority. Among
other things, he asked for files relating to a request for planning permission in 2001 at a
specific location. He also provided further details, including the names of the individuals he
believed submitted the application, to assist the Authority in locating the file.
2. The Authority responded on 3 October 2023 with a notice, under regulation 10(4)(a) of the
EIRs, that it did not hold the information requested.
3. On 4 October 2023, the Applicant wrote to the Authority requesting a review of its decision.
The Applicant stated that he was dissatisfied with the decision because the Authority was
obliged to retain the information requested and the information should be accessible by any
member of the public at any time.
4. The Applicant did not receive a response to his requirement for review.
5. The Applicant wrote to the Commissioner, 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. The enforcement provisions of FOISA apply to the enforcement of the EIRs,
subject to specified modifications – see regulation 17.
6. In Decision 029/2024, 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 and regulations 5(2) and 16(4) of the EIRs.
7. The Authority notified the Applicant of the outcome of its review on 25 January 2024. The
Authority explained that it was possible that it held the information requested, but it was
unable to locate it without further details (specifically, the reference number of application).
The Authority therefore withdrew its reliance on regulation 10(4)(a) of the EIRs and instead
relied on regulation 10(4)(c) (Request formulated in too general a manner).
8. On 7 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 had previously had access to the information requested
and therefore believed that the Authority held it and that it had either been “unable or
incompetent” in its efforts to find it.
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 1 March 2024, the Authority was notified in writing that the Applicant had made a valid
application. The case was allocated to an investigating officer.
11. 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. These related to the searches the
Authority carried out and the advice and assistance it provided to the Applicant.
12. During the investigation, the Authority stated that it was uncomfortable applying regulation
10(4)(a) of the EIRs because it may hold the information requested. However, the Authority
explained that it would accept that regulation 10(4)(a) applied if the Commissioner found that
it did.
13. As the Authority did not withdraw its reliance on regulation 10(4)(c) of the EIRs, the
Commissioner will not consider regulation 10(4)(a) and his decision will focus solely on
regulation 10(4)(c).
Commissioner’s analysis and findings
14. The Commissioner has considered all of the submissions made to him by the Applicant and
the Authority.
Application of the EIRs
15. The information requested appears to fall clearly within the scope of the definition of
environmental information contained in regulation 2(1) of the EIRs.
16. The Applicant made no comment on the Authority’s application of the EIRs in this case, and
the Commissioner will consider the request in what follows solely in terms of the EIRs.
Regulation 5(1) – Duty to make environmental information available
17. 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 an applicant. This obligation
relates to information that is held by the authority when it receives a request.
18. Under the EIRs, a Scottish public authority may refuse to make environmental information
available if one or more of the exceptions in regulation 10 applies.
Regulation 10(4)(c) – Request formulated in too general a manner
19. Regulation 10(4)(c) of the EIRs states that a Scottish public authority may refuse to make
environmental information available to the extent that the request for information is
formulated in too general a manner and the authority has complied with its duty under
regulation 9. Regulation 9 of the EIRs requires Scottish public authorities to provide advice
and assistance to applicants and prospective applicants: where the authority believes the
request is formulated in too general a manner, there is a specific duty (regulation 9(2)) to ask
the applicant for more particulars in relation to the request and assist the applicant in
providing those particulars.
20. Neither the Aarhus Convention nor the EIRs specify what is meant by "formulated in too
general a manner". The Commissioner's expectation is that there must be implications for an
authority's ability to identify the information requested, or to comply with the request in some
other respect. Even if a request is general in terms, but the authority is able to identify the
information requested and respond within an extended 40 working day timeframe (applying
regulation 7), it is unlikely to be "too general" for the purpose of the EIRs.
The Authority’s submissions on the exception
21. The Authority explained that the information requested was likely to predate its current online
planning site and that it had therefore carried out manual inspections of planning registers
and maps. The Authority provided evidence to the Commissioner of the searches that had
been undertaken by its planning and archive teams, which yielded no relevant information.
22. For completeness, the Authority stated that it had also carried out searches of its online
planning system. The Authority confirmed that those searches also yielded no relevant
information.
23. The Authority explained that it had carried out searches using the information the Applicant
had provide about the date and location of the planning application, as well as the names
associated with it.
24. On this basis, the Authority concluded that it had insufficient detail to enable it to locate the
information requested and that it had, in the circumstances, carried out adequate and
proportionate searches. Otherwise, the Authority stated that it would have to manually
review every case file and archive box which would be an unreasonable amount of effort.
25. The Authority provided evidence from its planning and archives teams suggesting that it
would be possible to carry out more focused searches of its planning registers and archives,
but that this would require the reference number for the planning application.
26. The Authority also suggested that it was possible the planning application had been made
under names other than those provided by the Applicant. If so, the correct names could
assist in conducting further searches.
27. The Authority therefore concluded that it might hold the information requested, but that it
could not say so with certainty. The Authority explained that it therefore considered it “more
appropriate” to rely on the exception in regulation 10(4)(c) of the EIRs.
28. The Authority accepted that it had not, within 20 working days of receiving the request, asked
the Applicant to provide more particulars in relation to the request and assisted the Applicant
to provide those particulars.
29. In its review response, the Authority stated that it did not believe it had provided the Applicant
with sufficient advice and assistance in response to his request.
30. When asked why it did not provide advice and assistance to the Applicant prior to issuing its
review outcome, the Authority explained that it had emailed the Applicant on 14 November
2023, before issuing its review outcome, advising him that it could not locate the information
requested without the planning reference number. The Authority noted that the Applicant
subsequently provided it with some further information.
31. The Authority explained that it therefore considered it had explained the situation sufficiently
and that the Applicant was unable to provide any further information.
32. The Authority also noted that its response to the Applicant’s requirement for review was
already late and explained that it did not consider matters would be improved if it returned to
the Applicant for further information before issuing its review outcome.
The Applicant's submissions on the exception
33. The Applicant submitted that the Authority was required to retain planning files and that it
should therefore hold the information requested.
34. The Applicant explained that he considered that he had provided the Authority with sufficient
information from the outset to locate the information requested, but that it had failed to do so
and that its efforts in doing so had either been “unable or incompetent”.
35. The Applicant also noted that the Authority had not disputed that it should hold the
information requested.
The Commissioner's view on the exception
36. The exception contained in regulation 10(4)(c) can only be upheld if the authority claiming
the exception has complied with its duties under regulation 9 of the EIRs. As the Authority
believed this exception to be applicable when it conducted its review, the Commissioner will
first consider whether the Authority fulfilled its duties under regulation 9 in responding to the
Applicant’s request.
37. Regulation 9(2) of the EIRs provides that where a request has been formulated in too
general a manner, the authority must ask the applicant to provide more particulars in relation
to the request, and must assist the applicant in providing those particulars.
38. The Commissioner notes that the Authority accepted, in its review response, that it did not
believe it had provided the Applicant with sufficient advice and assistance in response to his
request.
39. The Commissioner does not consider that the Authority’s email of 14 November 2023
satisfies regulation 9(2) of the EIRs: it did not ask the Applicant to provide more particulars,
nor did it assist him in doing so (though the Applicant subsequently volunteered some further
information).
40. The Commissioner also considers it unsatisfactory for the Authority to have declined to
discharge its duties under regulation 9(2) of the EIRs on the basis that its response to his
requirement for review was already late.
41. Taking all of the circumstances into consideration, the Commissioner finds that the Authority
has failed to justify its application of regulation 10(4)(c) of the EIRs. Even if the request was
formulated in too general a manner (the Commissioner has not reached a view on this), the
Authority failed to fulfil the consequent duties required by regulation 9(2) of the EIRs.
42. While the Applicant does not appear to possess the reference numbers that the Authority
maintains that it requires, he does appear to possess other information that may assist the
Authority in locating the information requested.
43. The Commissioner therefore requires the Authority to provide advice and assistance to the
Applicant, in line with regulation 9(2) of the EIRs, and to provide him with a revised review
response.
Decision
The Commissioner finds that the Authority failed to comply with the Environmental Information
(Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the
Applicant.
In particular, the Commissioner finds that the Authority failed to comply with regulations 9(2) and
10(4)(c) of the EIRs.
The Commissioner therefore requires the Authority to provide advice and assistance to the
Applicant, in line with regulation 9(2) of the EIRs, and to provide him with a revised review
response, in terms of regulation 16 of the EIRs, by 21 June 2024.
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.
David Hamilton
Scottish Information Commissioner
7 May 2024
Appendix 1: Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
47 Application for decision by Commissioner
(1) A person who is dissatisfied with -
(a) a notice under section 21(5) or (9); or
(b) the failure of a Scottish public authority to which a requirement for review was
made to give such a notice.
may make application to the Commissioner for a decision whether, in any respect
specified in that application, the request for information to which the requirement
relates has been dealt with in accordance with Part 1 of this Act.
(2) An application under subsection (1) must -
(a) be in writing or in another form which, by reason of its having some permanency,
is capable of being used for subsequent reference (as, for example, a recording
made on audio or video tape);
(b) state the name of the applicant and an address for correspondence; and
(c) specify –
(i) the request for information to which the requirement for review relates;
(ii) the matter which was specified under sub-paragraph (ii) of section 20(3)(c);
and
(iii) the matter which gives rise to the dissatisfaction mentioned in subsection (1).
The Environmental Information (Scotland) Regulations 2004
2 Interpretation
(1) In these Regulations –
“the Act” means the Freedom of Information (Scotland) Act 2002;
“applicant” means any person who requests that environmental information be made
available;
“the Commissioner” means the Scottish Information Commissioner constituted by
section 42 of the Act;
…
“environmental information” has the same meaning as in Article 2(1) of the Directive,
namely any information in written, visual, aural, electronic or any other material form on
–
(a) the state of the elements of the environment, such as air and atmosphere, water,
soil, land, landscape and natural sites including wetlands, coastal and marine
areas, biological diversity and its components, including genetically modified
organisms, and the interaction among these elements
(b) actors, such as substances, energy, noise, radiation or waste, including
radioactive waste, emissions, discharges and other releases into the
environment, affecting or likely to affect the elements of the environment referred
to in paragraph (a);
(c) measures (including administrative measures), such as policies, legislation,
plans, programmes, environmental agreements, and activities affecting or likely
to affect the elements and factors referred to in paragraphs (a) and (b) as well as
measures or activities designed to protect those elements;
…
(2) For the purpose of these Regulations, environmental information is held by a Scottish
public authority if it is-
(a) in its possession and it has been produced or received by that authority; or
(b) held by another person on that authority's behalf,
and, in either case, it has not been supplied by a Minister of the Crown or department
of the Government of the United Kingdom and held in confidence.
…
5 Duty to make available environmental information on request
(1) Subject to paragraph (2), a Scottish public authority that holds environmental
information shall make it available when requested to do so by any applicant.
…
9 Duty to provide advice and assistance
(1) A Scottish public authority shall provide advice and assistance, so far as it would be
reasonable to expect the authority to do so, to applicants and prospective applicants.
(2) Where a request has been formulated in too general a manner, the authority shall-
(a) ask the applicant as soon as possible, and in any event no later than 20 working
days after the date of receipt of request, to provide more particulars in relation to
the request; and
(b) assist the applicant in providing those particulars.
…
(4) In any case to which paragraph (2) applies, the date on which the further particulars
are received by the authority shall be treated as the date of the request for the
purposes of regulations 5(2)(a), 6(2)(a) and 13(a) and any period within which the
authority is required to respond to that request by these Regulations shall begin on the
day following that date.
10 Exceptions from duty to make environmental information available
(1) A Scottish public authority may refuse a request to make environmental information
available if-
(a) there is an exception to disclosure under paragraphs (4) or (5); and
(b) in all the circumstances, the public interest in making the information available is
outweighed by that in maintaining the exception.
(2) In considering the application of the exceptions referred to in paragraphs (4) and (5), a
Scottish public authority shall-
(a) interpret those paragraphs in a restrictive way; and
(b) apply a presumption in favour of disclosure
…
(4) A Scottish public authority may refuse to make environmental information available to
the extent that
(a) it does not hold that information when an applicant's request is received;
…
(c) the request for information is formulated in too general a manner and the
authority has complied with its duty under regulation 9;
…
17 Enforcement and appeal provisions
(1) The provisions of Part 4 of the Act (Enforcement) including schedule 3 (powers of entry
and inspection), shall apply for the purposes of these Regulations as they apply for the
purposes of the Act but with the modifications specified in paragraph (2).
(2) In the application of any provision of the Act by paragraph (1) any reference to -
(a) the Act is deemed to be a reference to these Regulations;
(b) the requirements of Part 1 of the Act is deemed to be a reference to the
requirements of these Regulations;
…
(f) a notice under section 21(5) or (9) (review by a Scottish public authority) of the
Act is deemed to be a reference to a notice under regulation 16(4); and
…
