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Decision 129/2025

Decision 129/2025: Correspondence on variations to Condition 19 of Coire Glas planning consent


Authority:  Highland Council
Case Ref:  202300729
 

Summary

The Applicant asked the Authority for correspondence with SSE Renewables or their contractors regarding a request to vary the Above Ground Construction Working Hours condition of the Coire Glas planning consent.  The Authority disclosed some information with personal data redactions and informed the Applicant that some other information which might have been held was no longer held.

The Commissioner investigated and found that the Authority had considered the request under the correct legislation and, on the balance of probabilities, was entitled to rely on regulation 10(4)(a) in responding to the Applicant’s request.

However, the Commissioner also found that the Authority had failed to comply with the duty to provide advice and assistance by not providing, in its review outcome, the correct notice of rights of appeal (in compliance with the Section 60 Code of Practice) which also resulted in the review outcome being non-compliant with the EIRs, and by not securing an email account that might have held relevant information (in compliance with the Section 61 Code of Practice).  In addition, he found that the Authority had failed to comply with the statutory timescales for responding to the Applicant’s request and requirement for review.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 39(2) (Health, safety and the environment); 21(5), (9) and (10) (Review by Scottish public authority); 47(1) and (2) (Application for decision by Commissioner); 56 (Appeal against notices under Part 4).

The Environmental Information (Scotland) Regulations 2004 (the EIRs) regulations 2(1) (definition of “the Act”, “applicant” and “the Commissioner” and paragraphs (a), (b), (c) and (f) of “environmental information”) (Interpretation); 5(1) and (2) (Duty to make environmental information available on request); 9(1) and (3) (Duty to provide advice and assistance); 10(1), (2) and (4)(a) (Exceptions from duty to make environmental information available); 16(4) (Review by Scottish public authority); 17(1), (2)(a), (b) and (f) (Enforcement and appeal provisions); 18 (Code of practice and functions of the Commissioner).

Background

  1. On 8 March 2023, the Applicant made a request for information to the Authority. It asked for all correspondence between SSE Renewables and [the Authority] on the subject of variations to the 23 conditions in the planning consent on 18/01564/S36 issued by the Scottish Government on 15 October 2020.
  2. The Authority wrote to the Applicant on 16 March 2023, asking it to clarify what it meant by the reference to “variations to the 23 conditions”, for example. the discharging or modification of a condition, or whether there was a specific condition it was referring to.
  3. That same date, the Applicant clarified that the information requested related specifically to Condition 19 of the Coire Glas consent approved by the Scottish Government on 15 October 2020.  It stated that it wished to see all the correspondence between SSE Renewables or their contractors Strabag UK and [the Authority] regarding a request to vary the Above Ground Construction Working Hours.
  4. Having received no response to its request within 20 working days, the Applicant wrote to the Authority on 20 April 2023 requesting a review of its decision, based on the Authority’s failure to respond.
  5. On 24 April 2023, the Authority wrote to the Applicant apologising for the delay in responding.  It informed the Applicant it was working with the services involved to finalise the response, which it hoped to issue shortly.
  6. The Authority notified the Applicant of the outcome of its review on 7 June 2023. It considered the request under the EIRs and applied the exemption in section 39(2) of FOISA.  The Authority disclosed the information requested, with third party personal data redacted under regulation 11(2) of the EIRs.  It explained that one member of staff had now left the Authority and any correspondence that might have been held in his mailbox was no longer accessible. The Authority applied regulation 10(4)(a) of the EIRs in respect of that information as it was no longer held by it.
  7. On 9 June 2023, 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 it was dissatisfied with the outcome of the Authority’s review because it believed the Authority should be able to access the information contained in the mailbox of the staff member who had left, and that this information should be disclosed.  The Applicant also raised dissatisfaction with the time taken by the Authority to respond, and the misleading information in its review outcome about the next steps (if dissatisfied with the review outcome).  The Applicant further questioned whether the Authority was correct to apply section 39(2) of FOISA and consider the request under the EIRs.

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 29 June 2023, 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.
  3. The Authority provided its initial comments on 28 July 2023, and the case was subsequently allocated to an investigating officer.
  4. Following consideration of the Authority’s comments, the investigating officer asked the Authority for further submissions.  These focused on the searches carried out to identify the information falling within scope of the request (with particular reference to any searches relating to the mailbox of the staff member who had left), the delays in responding to the Applicant’s request, the information in the review outcome on the next steps (if dissatisfied with the Authority’s review outcome) and the Authority’s justification for considering the request under the EIRs.
  5. The Authority provided the further submissions requested on 8 October 2024.

Commissioner’s analysis and findings

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

Handling in terms of the EIRs

  1. The Authority considered the Applicant’s request in accordance with the EIRs, on the basis that the information requested was environmental information as defined in regulation 2(1) of the EIRs.
  2. Where information falls within the scope of this definition, a person has a right to access it (and the public authority has a corresponding obligation to respond) under the EIRs, subject to the various restrictions and exceptions contained in the EIRs.
  3. In its initial comments, the Authority submitted that it believed the EIRs applied because the information related to a planning permission associated with the development of land in a picturesque part of the country, with the focus being on the management of noise caused by the development works.  As such, the Authority considered that paragraphs (b) and (c) of regulation 2(1) applied.
  4. The Commissioner accepts that the request related to the factors (in particular noise) described in paragraph (b), affecting or likely to affect the state of the elements of the environment in paragraph (a), and any measures or activities (in paragraph (c)) affecting or likely to affect, or designed to protect, these.  He also accepts that the information requested related to the conditions of human life insofar as these might be affected by the elements in paragraph (a) or, through those, by any of the matters in paragraphs (b) and (c). As such, the Commissioner is satisfied that the information requested by the Applicant falls within the definition of environmental information set out in regulation 2(1) of the EIRs, in particular paragraphs (a), (b), (c) and (f) of that definition.

Section 39(2) of FOISA – Environmental information

  1. The Authority confirmed that it wished to continue to rely upon section 39(2) of FOISA.  The exemption in section 39(2) of FOISA provides, in effect, that environmental information (as defined by regulation 2(1) of the EIRs) is exempt from disclosure under FOISA, thereby allowing any such information to be considered solely in terms of the EIRs.  In this case, the Commissioner accepts that the Authority was entitled to apply this exemption to the information withheld under FOISA, given his conclusion that it is properly classified as environmental information.
  2. The Authority submitted that, in line with the requirements of the legislation, it treated requests for environmental information under the EIRs rather than FOISA and that, in this case, it was appropriate to apply section 39(2) of FOISA.
  3. As there is a statutory right of access to environmental information available to the Applicant in this case, the Commissioner accepts, in all the circumstances, that the public interest in maintaining this exemption (and responding to the request under the EIRs) outweighs any public interest in disclosing the information under FOISA.  Both regimes are intended to promote public access to information and there would appear to be no reason why (in this particular case) disclosure of the information should be more likely under FOISA than under the EIRs.
  4. The Commissioner therefore concludes that the Authority was correct to apply section 39(2) of FOISA and consider the Applicant’s information request under the EIRs.

Regulation 5(1) – Duty to make available environmental information on request

  1. 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 any applicant.  This obligation relates to information that is held by the authority when it receives a request.
  2. On receipt of a request for environmental information, therefore, the authority must ascertain what information it holds falling within the scope of the request. Having done so, regulation 5(1) requires the authority to make that information available, unless a qualification in regulations 6 to 12 applies (regulation 5(2)(b)).
  3. 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, but only if, in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception.

Regulation 10(4)(a) – Information not held

  1. Regulation 10(4)(a) of the EIRs states that a Scottish public authority may refuse to make environmental information available to the extent that it does not hold that information when the applicant's request is received.
  2. The standard of proof to determine whether a Scottish public authority holds 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.  He also considers, where appropriate, any reason 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 recorded information is (or was, at the time the request was received) actually held by the public authority.

The Applicant's submissions

  1. In its application to the Commissioner, the Applicant provided the background to the request.  It explained that the Scottish Government had set certain conditions in approving the Coire Glas Pumped Storage Scheme.  Condition 19 of planning application 18/01564/S36 related to the Above Ground Working Hours, designed to give those that lived nearby periods of quiet during the construction.
  2. Although exceptions were permitted, the Applicant explained, the Authority appeared to have granted the Developer a 50% increase in hours for the entire period of the exploratory works, without any public transparency.  The Applicant wished to see the correspondence with the Authority and the Developer relating to the variation of this condition and, as there was one Principal Planning Officer employed as the liaison between the parties, his correspondence was considered to be crucial.
  3. Referring to the Authority’s claim that it was unable to provide any of the information in this individual’s mailbox as he no longer worked for the Authority, the Applicant argued that the individual’s work email address was the property of the Authority.  The Applicant believed it could not only be accessed, but also that all relevant information therein should be disclosed.
  4. In its submissions to the Commissioner, the Applicant expressed concern about the Authority’s use of the exception in regulation 10(4)(a), believing it had been used to avoid scrutiny on all of the information surrounding a major material change to a planning condition set by Scottish Ministers.
  5. The Applicant submitted that the individual in question was the Principal Planning Officer liaising with SSE Renewables, and he would have been pivotal in taking decisions, including the variation of working hours, and might have needed to access the information in the mailbox in future, in case of an appeal to the Scottish Government.
  6. In the Applicant’s view, everything in that mailbox with the designation “@highland.gov.uk” was the property of the Authority and, just because this individual had left his post, the Authority could not argue it was withholding information from a mailbox which was clearly its property, and which was to be used solely in the performance of that individual’s employment.

The Authority's submissions

  1. The Authority explained that the individual in question (the former Principal Planning Officer) had been the case officer for the Coire Glas Development, with responsibility for this case having been handed over to his successor prior to his departure.  As the successor took over, correspondence was copied to both individuals.  By the time the information request was received, the successor was the key contact between the Authority and the Developer.
  2. The Authority provided the Commissioner with a copy of its procedure setting out the Joiner Mover Leaver process.  It explained that, under its ICT process, once an employee’s leaver date is recorded on the HR system, the associated ICT user account is first automatically disabled and, one month later, the user account is automatically deleted (including the email account associated with the user account).  The Authority explained that although the vast majority of user/email accounts are deleted in this way, manual technical intervention on a case-by-case basis can be deployed in circumstances such as the need to retain an email account for a longer period, or to address an error in the automated process.
  3. The Authority submitted that it was possible to restore user/email accounts up to 30 days following deletion via manual restoration, but restoration was not possible after this period as the email account would have been permanently deleted by Microsoft by then as part of its Exchange Online[1] service. The Authority confirmed that it did not maintain separate backups of the Exchange Online mailboxes.
  4. As the former Principal Planning Officer had left the Authority on 19 February 2023, and the Applicant’s clarified request was received on 16 March 2023, the Authority acknowledged that his email account was still accessible during the period from 16 March 2023 until 20 March 2023.
  5. The Authority explained that the clarified request was passed to Planning staff on 17 March 2023 and, on 22 March 2023, information that was held in the case file and email accounts was identified and passed to the Area Planning Manager.  It was at this point that the issue of the former Principal Planning Officer’s email account was raised.  However, the staff involved did not have access to that email account and were unaware of the timescales for the deletion of a staff leaver’s mailbox. By the time staff considered the need to check if further information was held in that mailbox, it was too late to retrieve it.
  6. The Authority confirmed that the staff dealing with the request did not appear to have taken any action to discover whether it would have been possible to stop the deletion of the email account in question, meaning that the standard automated deletion process was followed and the email account was deleted on 20 March 2023. The Authority acknowledged that it could have been retrieved during the subsequent 30 days, but no further action appeared to have been taken regarding the request until the Applicant contact the Authority on 24 April 2023.
  7. Although no searches of that email account were carried out during the accessible period of 16 to 20 March 2023, the Authority explained that the main source of information about any  planning application was the case file.  It confirmed that the relevant information from the case file was provided to the Applicant, and this included emails from the former Principal Planning Officer.
  8. The Authority explained that its case management system – Uniform - was used to manage documentation around planning case files and this ensured that records relating to an application were held in one place.  The Authority submitted that it was the responsibility of the planning case officer to ensure that relevant information was transferred to Uniform.  The Authority believed that the former Principal Planning Officer adopted good discipline in storing information in the Uniform planning case files, to ensure compliance with records management, rather than in his own email account where it would be inaccessible to others.
  9. In informing the Applicant that it was unable to access any other correspondence that might have been held in the former Principal Planning Officer’s email account, the Authority believed it was appropriate to be transparent about this, should any other emails be in the public domain which were not in the case file, but it was unable to confirm whether this was the case.

The Commissioner's view on regulation 10(4)(a)

  1. The Commissioner has fully considered all relevant submissions and the terms of the request. He has taken account of the Applicant’s submissions in which it explains why it believes the Authority should be able to access, and would therefore hold, the information falling within the scope of its request, held in the former Principal Planning Officer’s email account.
  2. The Commissioner has also considered the explanations put forward by the Authority setting out why it cannot access, and therefore does not hold, any information held in that email account, which has been deleted.
  3. The Commissioner accepts that once an Authority employee’s email account has been disabled, it is automatically deleted after 30 days (unless manual technical intervention has been deployed to prevent deletion), after which it cannot be restored.
  4. The Commissioner cannot be absolutely sure that, further to the information which the Authority identified and disclosed to the Applicant, no other relevant recorded information was held by the Authority in the former Principal Planning Officer’s email account at the time the Authority received the request (i.e. before the email account was deleted on 20 March 2023).  However, as stated above, he must reach a decision based on the balance of probabilities, as to whether any further recorded information was held at that time.
  5. On the one hand, the Commissioner is deeply concerned that the Authority failed to take the necessary steps to secure the former Principal Planning Officer’s email account at the time the request was received, in order that it could be searched for relevant information.  It is a matter of fact that this did not happen.
  6. On the other hand, the Commissioner has taken account of the Authority’s submissions that the former Principal Planning Officer was generally diligent in uploading emails into case files, so that they were accessible to others, and that emails relating to the planning consent in this case were also being copied to his successor prior to his departure.
  7. Having weighed up the above, on balance, the Commissioner is inclined to accept that regulation 10(4)(a) is engaged, in this case, for any relevant correspondence held in the former Principal Planning Officer’s email account, and that regulation 10(4)(a) was properly applied in that respect.
  8. However, in the Commissioner’s view, by failing to secure the email account, this was extremely poor practice on the part of the Authority in relation to compliance with the Scottish Ministers’ Code of Practice on Records Management by Scottish Public Authorities under FOISA (“the section 61 Code”[2]).
  9. Under section 7 “Disposal of records” of the Section 61 Code, section 7.3 “General principle” provides that “records should not be kept after they have ceased to be of use to the authority unless:

    • “They are known to be the subject of litigation or a request for information.  If so, destruction should be delayed until the litigation is complete or, in the case of a request for information, all relevant complaint and appeal provisions have been exhausted;” (paragraph 7.3(a)), and

    • ”They contain or relate to information recently released in response to a request under FOISA. This may indicate historical value and destruction should be delayed while this is re-assessed.” (paragraph 7.3(c)).

  10. Regulation 9(1) of the EIRs provides that 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.
  11. Regulation 9(3) states that, to the extent that a Scottish public authority conforms to a code of practice under regulation 18 in relation to the provision of advice and assistance in a particular case, it shall be taken to have complied with the duty imposed by paragraph (1) in relation to that case. The Commissioner is satisfied that taking appropriate measures to secure requested information can be described as “assistance” in this context.
  12. It is a matter of fact that the Authority’s practice, in this case, did not comply with that recommended in the Section 61 Code (one of the Codes of Practice issued by the Scottish Ministers in line with regulation 18 of the EIRs).  The Commissioner therefore finds that, by failing to secure the email account of the former Principal Planning Officer at the time it received the Applicant’s clarified request, the Authority failed to comply with the duty to provide advice and assistance set out in regulation 9(1) and (3) of the EIRs.

Public interest test – regulation 10(4)(a)

  1. The exception in regulation 10(4)(a) of the EIRs is subject to the public interest test in regulation 10(1)(b) and so can only apply if, in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception.
  2. In this case, for the reasons set out above, the Commissioner is satisfied that the Authority does not (and did not, on receipt of the request) hold any recorded information covered by the request, held in the email account of the former Principal Planning Officer.  Consequently, he accepts that there is no conceivable public interest in requiring the disclosure of such information and finds that the public interest in making information available is outweighed by that in maintaining the exception.

Timescales for responding to request and requirement for review

  1. Regulation 5(2)(a) of the EIRs gives Scottish public authorities a maximum of 20 working days, following the date of receipt of the request, to comply with a request for information.

  2. Regulation 16(4) of the EIRs gives Scottish public authorities a maximum of 20 working days, following receipt of the requirement for review, to comply with a request for review.

  3. In its application to the Commissioner, the Applicant was dissatisfied with the Authority’s failure to respond to its original request, and also its failure to respond to its requirement for review in time.

  4. In its initial comments to the Commissioner, the Authority stated that it was experiencing the highest volume of information requests since the legislation came into force and higher than before the COVID-19 pandemic.  At the same time, it was experiencing organisation-wide staffing issues relating to the need to save money through recruitment controls and, in some areas, the lack of suitable candidates for posts.  These factors, the Authority argued, led to difficulties and delays in responding to information requests.

  5. The Authority submitted that its standard acknowledgement made reference to these delays and this case was a good example of where a key member of staff had left the organisation, which added to the workload of colleagues while posts were recruited.

  6. The Authority also explained that the request involved more than one service and required information to be redacted.  It submitted that staff did their best to comply with timescales; however, some responses were unfortunately delayed.

  7. The Authority acknowledged that it was unfortunate that an apology for the delay was not included with the response, but noted that an apology had been issued on 24 April 2023 [following the Applicant’s requirement for review].

  8. In relation to the Applicant’s request, the Authority acknowledged that the work had progressed reasonably quickly at first and then appeared to have stalled as a result of a lack of communication between the service and the central team. This led not only to a delayed response, but also cancelled out the opportunity to intervene before the email account was deleted.  The Authority apologised for these failings.

  9. It is a matter of fact that the Authority did not provide a response to the Applicant's original information request of 8 March 2023 within 20 working days, so the Commissioner finds that it failed to comply with regulation 5(2)(a) of the EIRs.

  10. It is also a matter of fact that the Authority did not provide a response to the Applicant's requirement for review of 20 April 2023 within 20 working days, so the Commissioner finds that it failed to comply with regulation 16(4) of the EIRs.

Handling of requirement for review

  1. As stated above, regulation 9(1) of the EIRs provides that 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. Regulation 9(3) states that, to the extent that a Scottish public authority conforms to a code of practice under regulation 18 in relation to the provision of advice and assistance in a particular case, it shall be taken to have complied with the duty imposed by paragraph (1) in relation to that case.
  2. In its application to the Commissioner, the Applicant was dissatisfied that the Authority’s review outcome of 7 June 2023 attempted to mislead the Applicant about the next process.
  3. In its initial comments to the Commissioner, the Authority acknowledged that the Applicant had contacted the Authority to say that its email of 20 April 2023 should be treated as a request for review.  The Authority explained that the Customer Resolution and Improvement Team ought to have passed the correspondence to the Information Governance Team for advice, or raised it with their Team Leader, but unfortunately this did not happen.  The Authority explained that the response was provided in a hurry to get the case closed, and consideration of whether the correct advice was provided with the response was overlooked.  The Authority submitted that this failure to follow procedure has been addressed and it apologised for not escalating the case to review stage.
  4. Having examined the Authority’s review outcome of 7 June 2023, the Commissioner notes that it provided the Applicant with full details on how to request a review, if dissatisfied with any aspect of how the Authority had dealt with the request, and that it also included reference to the subsequent right of appeal to the Commissioner if dissatisfied with the outcome of any review.  The Commissioner would concur with the Applicant’s view that this information was misleading, given that the response of 7 June 2023 was the Authority’s review outcome and the direct next step would be to make an application to him, if dissatisfied with that review outcome (and not a request for review, as suggested in the Authority’s review outcome).
  5. The Commissioner is further concerned that the Authority’s review outcome also failed to include the requisite notice of the right of appeal to his office (if dissatisfied with the Authority’s review outcome), and subsequent right of appeal to the Court of Session (on a point of law only (if dissatisfied with a decision issued by the Commissioner).  The right of appeal to the Commissioner may have been referred to, but (as indicated above) not in a context which made it clear it was the next step available to the Applicant.
  6. The EIRs make no specific provision as to the content of a notice to be issued under regulation 16(4), beyond requiring that it notifies the applicant of the authority’s decision on review.  Under section 10 “Handling reviews” of the Scottish Ministers’ Code of Practice on the Discharge of Functions by Scottish Public Authorities under FOISA and the EIRs (the “Section 60 code”[3]), however, section 10.5 “Providing details of appeal procedures” provides that:

    • “Every review response must provide details of their right to appeal to the Commissioner within six months of the response.” (paragraph 10.5.1), and

    • “The details provided must include the postal address of the Commissioner’s office, along with contact telephone number and email address.  These can be found on the “Contact Us” page of the Commissioner’s website. …” (paragraph 10.5.2).

  7. It is a matter of fact that the Authority’s review outcome did not fully meet the practice recommended in the Section 60 code.  The Commissioner therefore finds that, by failing to provide the correct information to the Applicant on the next steps, if dissatisfied with its review outcome, the Authority failed to comply with the duty to provide advice and assistance set out in regulation 9(1) and (3) of the EIRs.

Decision

The Commissioner finds that the Authority fully complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) but failed to fully comply with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the Applicant.

The Commissioner finds that, by relying on section 39(2) of FOISA and considering the Applicant’s request under the EIRs, the Authority complied with Part 1 of FOISA.

He also finds that the Authority correctly relied on the exception in regulation 10(4)(a) of the EIRs in respect of information held in the email account of the former Principal Planning Officer and, in that respect, it complied with regulation 5(1) of the EIRs.

However, the Commissioner finds that the Authority failed to comply with the EIRs by failing to comply with the timescales in regulations 5(2)(a) and 16(4) of the EIRs for responding to the Applicant’s initial request and its requirement for review respectively.

He further finds that the Authority failed to comply with regulation 9(1) and (3) by:

  • failing to comply with the Section 60 code by not providing, in its review outcome, the correct notice of right to application to the Commissioner and

  • failing comply with the Section 61 code by not securing the email account of the former Principal Planning Officer at the time the request was received.

For the reasons set out in this Decision Notice, the Commissioner does not require the Authority to take any action in respect of these failures, in response to the Applicant’s application.

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 

 

26 May 2025