17 September 2026
Scottish Information Commissioner David Hamilton has found that Dumfries and Galloway Council “failed at the most basic level” when responding to freedom of information (FOI) requests about a local flood protection scheme.
A member of the public had asked the Council for information about common good land affected by Dumfries’s ‘Whitesands’ Flood Protection Scheme. This included information on whether the Council had petitioned the courts about a change of use of the land.
Responding under the Environmental Information (Scotland) Regulations 2024 – the FOI law which governs access to the environmental information held by Scottish public bodies – the Council told the requester that relevant information could not be released because it was internal legal advice, so fell within the scope of a provision which protects internal communications, including legal communications, from disclosure.
Following the requester’s appeal to the Scottish Information Commissioner, the Council told the Commissioner that it had been wrong to state that information could not be disclosed because it contained internal communications. Instead, it told the Commissioner that it did not, in fact, hold the information. To verify this, the Commissioner asked for details of searches that had been undertaken to locate relevant information, with the Council going on to tell the Commissioner that no searches had been carried out, because it had “no reason to believe the information should be held”.
Commenting on these cases, Scottish Information Commissioner David Hamilton said:
“Dumfries and Galloway Council’s actions in relation to these requests failed at the most basic level of FOI request-handling.
“It is a simple and fundamental principle of FOI that public bodies first conduct a full and appropriate search for information covered by a request, before then considering whether that information can be disclosed.
“The Council’s approach here, however, was entirely wrong-headed, turning this important principle upside down. It first said that its legal advice was exempt from disclosure, before then going on to claim that it wasn’t held - despite having not carried out any searches for it.
“This approach is entirely unacceptable. I will not tolerate attempts to cut corners or shut down requests when it comes to the exercise of information rights.
“I will be watching carefully to see whether this was an unfortunate isolated incident, or whether it is symptomatic of a wider issue that requires more direct action.”
The Commissioner’s decisions on these cases require the Council to carry out detailed additional searches to identify whether it holds any information covered by the requests. The Commissioner’s Decisions are published on his website as Decision 235/2026 and 236/2026.
The Commissioner can also carry out interventions to support improvements in public authority performance in circumstances where there is evidence that repeated failures are occurring.
