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Decision 091/2025

Decision 091/2025: Farm inspections


Authority:  Scottish Ministers
Case Ref:  202401384
 

Summary

The Applicant asked the Authority for information about farm inspections.  The Authority initially responded that the information requested was publicly available.  The Authority later changed its position and concluded that it did not hold the specific information that was captured by the request.

The Commissioner investigated and found that the Authority had failed to comply with the EIRs in responding to the request. He required the Authority to issue a new review outcome that complies with the EIRs.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 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); 5(1) (Duty to make environmental information available on request); 6(1) (Form and format of information); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).

Background

  1. On 27 May 2024, the Applicant made a request for information to the Authority.  She asked for information relating to how the Authority carried out farm inspections.  A copy of the full request can be found in Appendix 1.
  2. On 24 June 2024, the Authority responded that most of the information was already publicly available on the Rural Payments and Services[1], Appeals[2] and Complaints[3] sections of its website and it cited regulation 6(1) of the EIRs.  The Authority also referred the Applicant to information that was contained in previous correspondence it had had with her.
  3. The Applicant wrote to the Authority on 24 June 2024, requesting a review of its decision. The Applicant stated that she did not consider that the publications and correspondence she had been directed to, answered her request, or that she had been given a complete response.
  4. The Authority notified the Applicant of the outcome of its review on 23 July 2024.  The Authority upheld the original response in full, but did provide some additional commentary and some web links to relevant legislation.
  5. On 16 October 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 she was dissatisfied with the outcome of the Authority’s review because she did not agree that information captured by her request was publicly available and she did not consider that she had been given a complete response.

Investigation

  1. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
  2. On 27 November 2024, the Authority was notified in writing that the Applicant had made a valid application.
  3. 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 how the Authority interpreted the request and how it identified information which fell within scope of the request.

Commissioner’s analysis and findings

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

The Authority’s change of position

  1. During the investigation, the Authority conceded that the information requested was not publicly available via the web links it provided to the Applicant.  The Authority accepted that it was not entitled to rely on regulation 6(1) of the EIRs.
  2. The Authority submitted that it did not hold any recorded information that answered the very specific questions asked by the Applicant and, therefore, it now sought to apply regulation 10(4)(a) of the EIRs.  The Authority submitted that it had not intended to obscure this fact, and, in an attempt to assist the Applicant, it had directed her to website resources on how RPID conducts inspections, and how those subject to inspections can appeal the results or complain.  It acknowledged that these website resources did not provide the specific detail requested by the Applicant.
  3. On 5 February 2025, the Authority wrote to the Applicant and notified her that it was now refusing to respond to the request under regulation 10(4)(a) of the EIRs, on the grounds that it did not hold any information which fell within the scope of the request, and the public interest lay in favour of upholding the exception.
  4. Given the Authority’s change of position, the Commissioner must find that the Authority was not entitled to rely on regulation 6(1) of the EIRs when it directed her to information which did not provide what she had asked for and that, in doing so, it failed to deal with the request in accordance with regulation 5(1) of the EIRs.
  5. The Commissioner also notes that the advice initially given to the Applicant in terms of regulation 6(1)(b) was not particularly helpful.  The Authority simply referred the Applicant to large, confused web pages rather than directing her to specific information on those web pages (perhaps, as the Authority later concluded, because the information could not be found there).  Where information is otherwise publicly available, authorities must direct requestors to locations where the information that has been requested can easily be found.

Scope of the request

  1. As noted above, the Authority submitted that the Applicant’s request did not relate to any recorded information held by it.  It argued that the nature, length and technical aspects of the questions comprising the request did not allow it to carry out searches for information captured by the request.  Rather, the Authority had asked one member of staff, who had a comprehensive understanding of the subject matter of the request.  The Authority commented that had the information been held, this member of staff would have been able to identify it and it would have been held within the publicly available information that the Applicant was directed to in its initial response and review outcome.  For these reasons, the Authority argued, searches of its records management systems were not carried out.
  2. The Commissioner is disappointed that the Authority declined to respond to his invitation to explain how it interpreted the request.  In the absence of any explanation from the Authority regarding this, he must draw his own conclusion.
  3. The Commissioner has considered all parts of the Applicant’s request carefully.  He is not persuaded by the Authority’s approach to the request.
    Although there are case specific aspects to the request, the Commissioner cannot accept the Authority’s position that no recorded information is sought.  In each part of the request, the Commissioner is clear that the Applicant is seeking information about the processes, procedures and decision making during a farm inspection; in general terms in some instances, and in others with particular reference to a specific farm inspection that took place.
  4. The Commissioner is not satisfied that the Authority has correctly interpreted the scope of the Applicant’s information request, and he requires it to fully consider the recorded information that is captured by each part of the request and determine whether that specific information is held.

  5. The Commissioner notes that the Authority has provided him with guidance documents, standards and other procedural information that could (and should) have been considered by the Authority when responding to the request.

  6. When providing the Applicant with a new review outcome, under regulation 16 of the EIRs, the Commissioner requires the Authority to reconsider its interpretation of the scope of the request with a view to identifying whether it holds any recorded information that meets the terms of each part of the request.  Furthermore, if, after conducting this new review the Authority determines that some of the information requested by the Applicant is published on its website, it must direct the Applicant to the specific pages/sections/passages that contain the information asked for in each numbered request.

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.

He finds that the Authority wrongly applied regulation 6(1) to the information requested by the Applicant and, by doing so, it failed to comply with regulation 5(1) of the EIRs.

The Commissioner therefore requires the Authority to

  • carry out through and comprehensive searches for the information falling within scope of the Applicant’s request and provide evidence that the searches have been carried out to the Commissioner’s satisfaction,

  • reach a decision on the basis of those searches and notify the Applicant of the outcome (in terms of regulation 16 of the EIRs).

by 8 June 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.

 

Jennifer Ross

Deputy Head of Enforcement 


24 April 2025

 

 

Appendix 1:  The request

“Under the Freedom of Information Act, I am writing to request the following information:

Following an RPID Inspection at the above Farm between November 2022 – December 2023, could you provide the any guidance, procedures, constitution, regulatory, legal or other similar documentation, highlighting the specific area within these documents which answers the following questions…”

  1. What is an RPID Officer allowed to discuss with an Agent? Is an RPID Officer allowed to ask an Agent to make decisions on behalf of the client? Are any RPID Officers allowed to have internal meetings to discuss asking the Agent to "liaise with the client to ensure family give authority for decisions to made for the business" and "get something in writing" to have the right to make decisions on behalf of the client''. All done/discussed without the knowledge of the client.
  2. I have been informed that an RPID Inspector has "no authority to have animals shot". Can an RPID Officer ask an Agent to be the "Responsible Person" for an Inspection? Asking the Agent to make decisions on whether an animal could be "shot immediately on-site" and "be held back and slaughtered on the farm for uplift by the Fallen Stock Company''? All done/discussed without the knowledge of the client.
  3. Article 4 - An explanation has been supplied here for "force majeure and exceptional circumstances". It also details an explanation "if a beneficiary has been unable to comply with the eligible criteria or other obligation as a result of force majeure or exceptional circumstances he shall retain his right to as in respect of the area or animals eligible at the time when the case of force majeure or the exceptional circumstance occurred". An RPID Officer was verbally asked on the 13th February 2023 if the Inspection could be postponed, but informed that the decision had already been made and the inspection "had to go on" prior to this date and without any discussing it with the client. The client was unaware of this exception when asking for the postponement on 13th February 2023 and only found out about this exception following completion of the inspection on-site. Following an illness as above, should the option of "force majeure and exceptions circumstances" have been offered by RPID, or at least discussed with the client? Is an RPID Officer allowed to make the decision for the Inspection to go ahead without knowing how ill [REDACTED] was at this time, or discussing it with the other partner in the Business? Detail was included in an RPID Report that [REDACTED] was "required for identifying and DNA testing" and was not in a position to do this. There was also a doctor's note to confirm his [REDACTED] Should this have been taken into consideration as part of the Inspection and any outcomes?
  4. Are there any circumstances that an RPID Officer can discuss a client's business information with a third party without consent or a mandate being in place? I have been informed that "data protection" only covers personal data. Can you provide details of the area that covers a business data breach and a breach in confidentiality? Is there any recompense for RPID Officers discussing business data and a breach of confidentiality with third parties without a mandate being in place?
  5. What can be done if a Report, which is used to make decisions", is inaccurate, information omitted or information mis-leading to the audience?
  6. 1306/2013, Article 58 covers - Protection of the financial interests of the Union as well as Article 59 which covers - General principles of checks, and Article 63 covers Undue payments and administrative penalties. Can penalties be applied for 8 years previous when there is no time-scale provided?
  7. Article 31 states that "If that amount cannot be offset in the course of the three calendar years following the calendar year of the findings, in accordance with the rules laid down by the Commission ....... " then follows, "the outstanding balance shall be cancelled". If the Findings Report was provided by RPID in December 2023, I read the above that any penalties should be offset in 2024, 2025 and 2026 - the following 3 calendar years. Is this correct? Or are RPID allowed to withhold 2022 and 2023 payments to allow deductions to be made from them? If this is so, where does it state payments can be withheld for this reason?
  8. Notice of Registration/Cattle Inspection Appeal.  On form PF19 it states that an appeal meeting should be held within 60 days, and the outcome report provided within 60 days of the meeting. Only after waiting the initial 60 days, I was informed that this appeal is out of the normal scope and did not need to adhere to these time-scales. Please can you provide details of where it states that this appeal is out of the normal scope and does not have to adhere to these time-scales? If this is correct, is there a procedure in place that the client should be informed of this when submitting the appeal, along with being provided with time-scales of when the appeal is likely to be completed?