Decision 201/2025: Scottish Water’s sewer overflows

Authority: Scottish Environment Protection Agency
Case Ref: 202500815
 

Summary

The Applicant asked the Authority for information relating to Scottish Water’s sewer overflows licenced by the Authority.  The Authority informed the Applicant that it did not hold some of the information requested.  The Commissioner investigated and found that the Authority held the information that it said it did not hold.  He required the Authority to reconsider the Applicant’s request and to issue a revised review outcome.

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 environment); 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”, “the Commissioner” and the definition of “environmental information”) (Interpretation); 5(1) and (2)(b) (Duty to make environmental information available on request); 10(1), (2) and (4)(a) (Exceptions from duty to make environmental information available); 17(1) and (2)(a), (b), (c) and (f) (Enforcement and appeal provisions).

Background

1. On 13 March 2025, the Applicant made a request for information to the Authority related to Scottish Water's licences under the Water Environment (Controlled Activities) (Scotland) Regulations 2011.  Specifically, they asked for the following information relating to Scottish Water's sewer overflows licensed by SEPA (including Combined Sewer Overflows, Settled Storm Sewage Overflows and Emergency Outflows):

   (1) “The amount of sewer overflows managed by Scottish Water.

   (2) The amount of sewer overflows managed by Scottish Water that are by licence required to have:

         a) screens;

         b) screen monitors;

         c) event recorders;

         d) flow monitors.

   (3) Scottish Waters's compliance with licence conditions for sewer overflows between 2019-2025, including:

     a) the amount of sewer overflows that did not meet the licence requirements related to i) screens ii) screen monitors iii) event recorders and iv) flow monitors;

     b) the amount of sewer overflows that did not meet the licence requirements for pass forward flows;

     c) the amount of sewer overflows that were non-compliant for any other reason;

     d) enforcement action taken by [the Authority] in relation to any failures to meet licence conditions.

   (4) Please confirm how regularly [the Authority] reviews the required pass forward flows in Scottish Water's licences for sewer overflows.”

2. The Authority did not respond to the information request.
3. On 11 April 2025, the Applicant wrote to the Authority in respect of its failure to respond.
4. The Authority notified the Applicant of the outcome of its review on 13 May 2025 in the following terms:

• for part (1) of the request, it disclosed information to the Applicant

• for part (2) (inclusive) of the request, it applied the exception in regulation 10(4)(a) of the EIRs on the basis it did not hold the information requested.  It explained that this information “is not held centrally – it is only held within licence documents” and that total figures could not be provided

• for parts (3)(a)-(c) of the request, it applied the exception in regulation 10(4)(a) of the EIRs on the grounds it did not hold the information requested.  It explained that its current interim compliance system – introduced on 1 April 2023 – does not record individual permit condition breaches.  It was therefore unable to extract the specific information requested.  While “compliance information of this detail is recorded”, it was not available in a central system.

• for part (3)(d) of the request, it disclosed some information to the Applicant and withheld other information under the exception in regulation 10(5)(b) of the EIRs

• for part (4) of the request, it provided an explanation to the Applicant.

5. On 22 May 2025, 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 they were dissatisfied with the outcome of the Authority’s review because:

• they disagreed that the exception in regulation 10(4)(a) of the EIRs applied to parts (2) and (3)(a)-(c) of their request

• they did not consider that the Authority had provided a satisfactory response to part (4) of their request.

Investigation

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
7. On 23 June 2025, the Authority was notified in writing that the Applicant had made a valid application. The case was subsequently allocated to an investigating officer.
8. 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 its reliance on the exception in regulation 10(4)(a) of the EIRs for parts (2) and (3)(a)-(c) of the Applicant’s request and its response to part (4) of their request.
9. During the investigation, the Applicant confirmed that they no longer required a decision in relation to part (4) of their request.  The Commissioner’s decision will therefore only consider whether the Authority was entitled to rely on the exception in regulation 10(4)(a) of the EIRs for parts (2) (inclusive) and (3)(a)-(c) of the Applicant’s request.

Commissioner’s analysis and findings

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

Handling in terms of the EIRs

11. The Authority considered the Applicant's request under the EIRs, having concluded that the information requested was environmental information as defined in regulation 2(1) of the EIRs.
12. The information requested appears to fall clearly within the scope of the definition of environmental information contained in regulation 2(1) of the EIRs.
13. The Applicant has not disputed the Authority’s decision to handle his request under the EIRs, and the Commissioner is satisfied, in the circumstances, that the information requested falls within the definition of environmental information set out in regulation 2(1).

Section 39(2) – Environmental information

14. 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.
15. In this case, therefore, the Commissioner accepts that the Authority was entitled to apply the exemption in section 39(2) of FOISA, given his conclusion that the information requested is properly considered to be environmental information.
16. 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.
17. 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.
18. The Commissioner therefore concludes that the Authority was correct to apply section 39(2) of FOISA and to consider the Applicant's information request under the EIRs.
19. In what follows, the Commissioner will consider this case solely in terms of the EIRs.

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

20. 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. It is important to bear in mind that this obligation relates to information actually held by an authority when it receives the request, as opposed to information an applicant believes the Authority should hold.
21. Under the EIRs, a public authority may refuse to make environmental information available if one or more of the exceptions in regulation 10 apply and, in all the circumstances of the case, the public interest in maintaining the exception or exceptions outweighs the public interest in making the information available. If no such information is held by the authority, relation 10(4)(a) of the EIRs permits the authority to give the applicant notice to that effect.

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

22. Regulation 10(4)(a) of the EIRs provides that a Scottish public authority may refuse to make environmental information available to the extent that it does not hold that information when it received the request.
23. 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.
24. The Commissioner 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 

25. The Applicant disagreed that the Authority was entitled to apply the exception in regulation 10(4)(a) of the EIRs to their request, particularly as its review outcome indicated that it did hold relevant information. 

The Authority's submissions 

26. The Authority acknowledged that it could have been clearer in its review outcome regarding its application of the exception in regulation 10(4)(a) of the EIRs. However, it maintained that the exception applied because the information requested was not held in an easily extractable or compiled format.
27. Specifically, the Authority stated that:

• for part (2) (inclusive) of the Applicant’s request, the “data exists within individual authorisation documents”

• for parts (3)(a)-(c) of the Applicant’s request, it would need to go through each individual record and then check whether the site has been recorded as non-compliant due to any of the reasons specified.

28. The Authority provided detailed submissions on the difficulties that it said would be associated with searching for, locating and identifying information relevant to the Applicant’s request and the burden that complying with the request would therefore impose in terms of cost and staff time (which it provided an estimate of).
29. In conclusion, the Authority submitted that, where the requested data existed, it was not held centrally and instead existed in “disparate” sources.  It therefore considered that the exemption in regulation 10(4)(a) of the EIRs applied as the information could not be readily extracted without significant manual review of these sources and collation of the required information.

The Commissioner's view 

30. The Commissioner has carefully considered the submissions made by the Applicant and the Authority.
31. Whatever difficulties may exist in searching for, locating and identifying information relevant to the Applicant’s request, the Commissioner cannot accept, based on the Authority’s own submissions, that it does not hold the information requested for the purposes of the EIRs.  He therefore cannot find that the Authority was entitled to rely on the exception in regulation 10(4)(a) of the EIRs.  An authority will not hold information where that information requires to be created to respond to a request, and that will include situations where a significant input of skill and judgement is required to produce the information, but that is not the case where the information is clearly in the authority’s possession and any burden involved in making it available relates simply to its extraction and collation.
32. The Authority’s submissions on the burden that complying with the request would impose might have been relevant had the Authority applied the exception in regulation 10(4)(b) of the EIRs (which public authorities should not use lightly). However, they do not affect whether the information requested was held by the Authority for the purposes of the EIRs.
33. As the Commissioner finds that the Authority was not entitled to rely on the exception in regulation 10(4)(a) of the EIRs, he is not required to go on to consider the application of the public interest test in regulation 10(1).
34. The Commissioner requires the Authority to reconsider parts (2) (inclusive) and (3)(a)-(c) of the Applicant’s request and issue them with a revised review outcome (in terms of regulation 16 of the EIRs and otherwise than in terms of regulation 10(4)(a)).

Decision 

The Commissioner finds that the Authority failed to comply with the Environmental Information (Scotland) Regulations 2004 (EIRs) in responding to the information request made by the Applicant.

The Commissioner finds that the Authority was not entitled to rely on the exception in regulation 10(4)(a) of the EIRs and inform the Applicant that it held no recorded information which would fulfil parts (2) (inclusive) and (3)(a)-(c) of their request.

The Commissioner requires the Authority to reconsider these parts of the Applicant’s request and issue them with a revised review outcome (in terms of regulation 16 of the EIRs), either disclosing the information which falls within scope or explaining why (in accordance with any relevant provision in the EIRs, except regulation 10(4)(a)) the information cannot be disclosed, by 13 October 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.

Euan McCulloch 

Head of Enforcement 

29 August 2025