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Decision 100/2025

Decision 100/2025: Security declarations related to land


Authority:  Keeper of the Registers of Scotland
Case Ref:  202401467
 

Summary

The Applicant asked the Authority for information about the parcels of land which had security declarations applied.  The Authority withheld the information on the ground that disclosure would, or would be likely to, prejudice substantially the effective conduct of public affairs. The Commissioner investigated and found that the information was exempt from disclosure and the Authority was entitled to withhold it.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 30(c) (Prejudice to effective conduct of public affairs); 47(1) and (2) (Application for decision by Commissioner).

Background

  1. On 15 September 2024, the Applicant made a request for information to the Authority in relation to the Register of Persons Holding a Controlled Interest in Land[1].  He noted that Regulation 16 of The Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) Regulations 2021[2] (the Regulations) allow for the Keeper of the National Records of Scotland to receive “security declarations” from “associates” of “recorded persons”, and he asked

    1. Are these security declarations public documents?  Can I access them? 

    2. How many security declarations were in force as of the 1st of May 2024? 

    3. For which, if any, parcels of land were security declarations in force as of the 1st of May 2024? 

  2. The Authority responded on 14 October 2024.  It provided information in response to parts (i) and (ii) of the request but notified the Applicant that it was withholding information falling within the scope of part (iii) of the request under section 30(c) of FOISA on the grounds that disclosing the information would prejudice the effective conduct of public affairs.
  3. On 17 October 2024, the Applicant wrote to the Authority asking it to review its decision to withhold information under section 30(c) of FOISA.  The Applicant stated that the Authority’s actions, in not allowing scrutiny of the declarations, was prejudicial to the effective conduct of public affairs.
  4. The Authority notified the Applicant of the outcome of its review on 1 November 2024, upholding its original decision in full, without modification.
  5. On 5 November 2024, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  The Applicant stated he had concerns that by withholding information about the security declarations over specific parcels of land, the Authority was inhibiting transparency which, in turn, made the Regulations themselves operationally unenforceable.  He argued that the ownership of land should be transparent.

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 2 December 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 and the case was allocated to an investigating officer.
  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 the Authority’s reasons for withholding the information.

Commissioner’s analysis and findings

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

Section 30(c) - Prejudice to the conduct of public affairs

  1. The Authority is withholding information about the parcel of land which was subject to a security declaration (at the time of the request) under section 30(c) of FOISA. This relates to part (iii) of the Applicant’s request.
  2. Section 30(c) of FOISA exempts information if its disclosure "would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs."  The use of the word "otherwise" distinguishes the harm required from that envisaged by the exemptions in sections 30(a) and (b).  This is a broad exemption and the Commissioner expects any public authority citing it to show what specific harm would (or would be likely to) be caused to the conduct of public affairs by disclosure of the information, and how that harm would be expected to follow from disclosure.  This exemption is subject to the public interest test in section 2(1)(b) of FOISA.
  3. In order for the exemption in section 30(c) to apply, the prejudice caused by disclosure must be substantial and therefore of real and demonstrable significance.  The Commissioner expects authorities to demonstrate a real risk or likelihood of substantial prejudice at some time in the near (certainly foreseeable) future, not simply that such prejudice is a remote or hypothetical possibility.  Each request should be considered on a case-by-case basis, taking into consideration the content of the information and all other relevant circumstances.

The Authority's comments on the exemption

  1. The Authority noted that security declarations were designed to protect individuals or those connected with them, at risk of violence, abuse, threat of violence or abuse, or intimidation, and that it had legal obligations regarding any security declaration made under the Regulations.  The Authority submitted that protecting individuals whose data it was responsible for, particularly those at substantial risk of harm, was a core part of its responsibilities as a public body trusted for its integrity, a responsible custodian of public data and as a data controller.
  2. The Authority argued that disclosure of the property details associated with the security declaration in the targeted and specific way requested by the Applicant, would significantly undermine the security declaration protection regime, ultimately risking the identification of the individual(s) and potential realisation of the violence, abuse, threat of violence or abuse or intimidation that the security declarations were designed to prevent.
  3. The Authority explained that the search function of the Register of Persons Holding a Controlled Interest in Land (the Register) allowed anyone to search by property, recorded person or associate.  It noted that the information published on the Register displayed whether a security declaration has been accepted for an associate in relation to a specific property but did not display the name of the associate to which that security declaration related.  The Authority argued that in publishing this information, the transparency aims of the Register were met, whilst appropriately balancing that transparency against the requirement to protect any individual associate that had submitted a security declaration.
  4. The Authority submitted that the Register’s search function was designed specifically to prevent users from being able to search directly for a property, or properties, where a security declaration had been accepted.  This was to mitigate the risks presented by bad actors motivated by the desire to identify individuals protected by security declarations, making the harm and distress to those individuals more likely to occur.
  5. The Authority commented that this information request demonstrates that these risks were real.  It noted that the Applicant has confirmed that they believe security declarations (and hence the identity of the individuals) should be publicly available.  The Authority argued that the Applicant’s interest in requesting the information in this way was to use it to try and identify the individual at high risk of harm and distress.
  6. Furthermore, the Authority submitted that the Applicant had frequently published correspondence relating to their requests on social media, meaning anything disclosed would likely immediately become publicly available.
  7. The Authority outlined the steps that a motivated individual could take to try and identify individuals, from other information about the parcel of land to which the associate holding the security declaration relates.
  8. The Authority noted, as it had previously disclosed to the Applicant, that at the time of the request there was only one security declaration in force and, because of this, that single individual was at a higher risk of successfully being identified as a sole potential target.  The Authority submitted that the balance of risk of real or serious harm to the individual increased substantially if the requested information was disclosed, under circumstances where the law explicitly provided for their protection.
  9. The Authority was concerned that public disclosure of the information, in the way requested, would set a precedent, thereby allowing anyone to request and receive information related to security declarations and to target specific associates listed in the Register.  It argued that this would make the security declaration protection regime worthless, which was clearly not the intention of the Regulations.  The Authority submitted that the Regulations had received parliamentary scrutiny and unanimous approval.
  10. The Authority submitted that its role overseeing the security declaration process required that the public had confidence and trust in the Register and in the Authority as a public body, a registrar and a data controller.  The Authority argued that disclosure, as well as risking significant harm and distress to individuals, would severely damage this trust and the willingness of individuals to engage with the Authority on this and other registers.  It submitted that release of the information constitutes substantial harm to the conduct of the Authority’s public affairs.

The Applicant's comments on the exemption

  1. The Applicant argued that by withholding information, the Authority had made the Register operationally unenforceable.  He argued that the entire point of the Register was that land ownership should be transparent and that withholding the name of the owner destroyed that transparency and must be open to challenge.  He submitted this was obviously impossible if the security declaration was not public in any circumstances.
  2. The Applicant argued that the purpose of the Register was to improve transparency of land ownership, and that the Authority having sole access to the security declarations did not allow the public to have confidence that land ownership in Scotland was transparent.

The Commissioner's view on the exemption

  1. The Commissioner has considered the nature of the withheld information and the submissions from the Applicant and the Authority.
  2. The Commissioner acknowledges the Applicant’s concern that by withholding the information he requested in part (iii) of his request, the Authority is negatively impacting the transparency of land ownership in Scotland.  However, the Commissioner considers this concern is not wholly justified.  Where there is a genuine interest in the parcel of land which is the subject of the request, members of the public with that interest will be able to search the Register for the ownership details of that parcel of land.
  3. Details of those with a controlled interest in land are published in the Register, unless those individuals are also associates whose details who are protected by a security declaration. This is likely to occur in only limited circumstances and in this case, the Authority has confirmed that only one piece of land is affected by a security declaration.
  4. The Commissioner has carefully considered the Authority’s submissions.  The Commissioner accepts that disclosure of the information would be contrary to the purpose of the security declaration regime; protecting those at risk of violence, abuse, threat of violence or abuse, or intimidation.
  5. He accepts that the Authority has statutory functions in relation to the Register and, specifically, in relation to the acceptance (or otherwise) of security declarations.  He also accepts that, in order to carry out these functions, and its other functions, the Authority needs to maintain the trust of the organisations and individuals it carries out these functions on behalf of.  If this trust were diminished, or lost, it would critically undermine the Authority’s ability to carry out those functions.
  6. In all the circumstances, the Commissioner is satisfied that the disclosure of information about the single parcel of land which relates to an associate with a current, accepted security declaration would, or would be likely to, otherwise prejudice substantially the effective conduct of public affairs.  He accepts that the Authority was entitled to apply the exemption in section 30(c) of FOISA to the information captured by part (iii) of the Applicant’s request.

Public interest test – section 30(c) of FOISA

  1. The exemption in section 30(c) is subject to the public interest test in section 2(1)(b) of FOISA.  The Commissioner must therefore go on to consider whether, in all the circumstances of the case, the public interest in disclosing the information is outweighed by that in maintaining the exemption.
  2. The public interest is not defined in FOISA but has been described in previous decisions as "something which is of serious concern and benefit to the public", not merely something of individual interest.  It has also been held that the public interest does not mean "of interest to the public" but "in the interests of the public", i.e. disclosure must serve the interests of the public.

The Authority’s comments on the public interest

  1. The Authority acknowledged the public interest in openness and transparency within the public sector.  Specifically, in relation to the Register, the Authority accepted that there was a public interest in full transparency and effective scrutiny of the published information to realise the purpose of the Register and facilitating that through different methods and by different criteria (such as that requested by the Applicant).
  2. However, the Authority also recognised the public interest in preventing the risk of identifying individuals who were protected by security declarations; those who are at substantial risk of harm and distress.  It submitted that there was public interest in avoiding setting a precedent that information from the Register can be requested in a manner which specifically targets properties where a security declaration is in force.
  3. The Authority submitted that there was a public interest in protecting the security declaration process, including protection of the Authority’s statutory duties as part of that process and ensuring that the public has confidence and trust in both the Register and the Authority.
  4. The Authority argued that the public interest was met through the existing searching arrangements for the Register.  It submitted that the disclosure of the information added nothing further to those aims (of transparency and scrutiny) but did introduce risks of harm and distress to individuals, significantly undermined the security declaration regime and undermined trust in the Register and in the Authority.

The Applicant’s comments on the public interest

  1. The Applicant reiterated his concern that a security declaration allowed a person not to disclose their identity on the Register.  The Applicant cited Principle 6 of the Scottish Land Rights and Responsibilities Statement 2022[3] and argued that, because of this strong presumption of transparency in the ownership, use and management of land, there was a mechanism by which security declarations can be challenged in the Lands Tribunal for Scotland and that this right was necessary to prevent security declarations being misused by unscrupulous landowners.
  2. The Applicant noted that a security declaration which could not be examined could not be challenged.  He argued that the Authority’s decision against disclosure was an impediment to this right and thwarted the Lands Tribunal’s ability to execute its duties.
  3. The Applicant also submitted that withholding the information hindered wider investigations into the ownership of land in Scotland.  He argued that the very existence of one such declaration for an unknown person made it impossible to know whether landowners were complying with their legislative obligations.  He submitted that an absence in the Register may be due to non-compliance or it may be due to the existence of a security declaration that was hidden from view.  In such cases, the Applicant submitted that a citizen would not be able to determine which situation applied, and he argued that citizens were the only people able to report problems with the Register, there being no public body tasked with policing it.  He contended that, for these reasons, transparency in regard to security declarations was fundamental to giving the Regulations proper effect.

The Commissioner's view on the public interest

  1. The Commissioner has considered the Applicant’s arguments on the public interest carefully. The Commissioner notes the Applicant’s concern around the right to challenge security declarations in the Lands Tribunal for Scotland.  However, the Commissioner considers it possible that the Applicant has misunderstood these rights.  He notes that this right is only available to associates who have been refused a security declaration by the Authority.  It is not a right for members of the public to challenge the application of a security declaration[4], and there does not appear to be any such right in law.
  2. The Applicant’s second argument (paragraph 38) concerned the ability of members of the public to scrutinise the Register.  The Commissioner recognises that there is a very strong public interest in landownership in Scotland and he recognises the strong public interest in the purpose of the Register; the provision of land ownership details where these are not otherwise available on other public registers.  However, the Commissioner is not satisfied that disclosure of the information, information about a parcel of land over which a security declaration is held by a person(s) holding a controlling interest in that land, satisfies the public interest in any significant way.
  3. The Commissioner agrees with the Authority that the public interest is served by the existence of the Register itself and the searchability of it.  The parcel of land which is the subject of the request is on the Register and members of the public are able to search for ownership details if there is a genuine interest in, and consequent knowledge of, that specific parcel of land.
  4. The Commissioner agrees with the Authority that there is a strong public interest in ensuring that the Register has the purpose and function that was intended and that the regulatory regime which applies to it works effectively, particularly given the specific provisions relating to security declarations.  The Commissioner is persuaded by the Authority’s argument that it has a statutory role in giving effect to the regulations on security declarations in relation to the Register and he agrees there is a public interest in ensuring those functions can be carried out effectively.  There can be no public interest in undermining those functions or in undermining the very purpose of security declarations.
  5. Furthermore, in the Commissioner’s view, there is no public interest in significantly increasing the risk of identification and harm to any individual that has sought (and been granted) protection under the security declaration regime, through disclosure of the information.  It is of the essence of that regime, surely (notwithstanding any concerns the Applicant may have about the matter, and for reasons which a quite clearly in the public interest), that the identity of an associate who is the subject of a valid security declaration is not ascertainable to the public.
  6. In all the circumstances, the Commissioner is satisfied that the public interest in disclosure is outweighed in this case by that in maintaining the exemption and allowing the information to be withheld under section 30(c) of FOISA.  The Commissioner therefore finds that the Authority was entitled to withhold the information under this exemption.

Decision 

The Commissioner finds that the Authority complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant.

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.

 

Euan McCulloch 

Head of Enforcement 


28 April 2025