Decision 202/2025:  Specific provision of planning law

Authority: Scottish Borders Council
Case Ref: 202500664  
 

Summary

The Applicant asked the Authority for information relating to a specific provision of planning law as it related to cemeteries and a specific complaint made by the Applicant.  The Authority advised the Applicant that it held no information, other than information it had previously provided to the Applicant, relating to this provision of planning law.  The Commissioner investigated and found that, subject to a small amount of information wrongly withheld as out of scope, the Authority held no further information falling within the scope of the Applicant’s request.  He required the Authority to disclose the small amount of wrongly withheld information to the Applicant.

Background

1. On 6 June 2022, the Applicant wrote to the Authority and made a number of requests.
2. On 8 June 2022 the Authority wrote to the Applicant to confirm what information he was seeking.
3. On 9 June 2022, the Applicant confirmed he was, among other things, seeking: “All information held by the [Authority] in relation to section d including the reason why it was not included in [the Authority’s response to his previous correspondence].”
4. By way of background, section 8(3) of The Planning (Listed Building and Conservation Areas) (Scotland) Act 1997 (the 1997 Act) sets out a defence to the offences contained in section 8(1) and (3).  In the previous correspondence mentioned above, the Applicant suggested that the Authority had failed to comply with the 1997 Act in relation to certain works it had carried out in cemeteries.  The Authority advised the Applicant that it considered the defence under section 8(3) of the 1997 Act applied, but while quoting the Act it omitted mention of section 8(3)(d) (referred to as “section d” in the request), which contains a specific element of this defence.
5. The Authority responded on 27 June 2022.  It noted that it had processed the request under the Environmental Information (Scotland) Regulations 2004 (EIRs) and stated that it held no record of communications for the cases that were the subject of the Applicant’s previous correspondence.
6. On the same day, the Applicant wrote to the Authority requesting a review of its decision. He stated that he was dissatisfied with the decision because his request sought “all the information” held by the Authority in relation to “section d”; it was not limited to cases covered by his previous correspondence.
7. The Authority notified the Applicant of the outcome of its review on 22 July 2022, which fully upheld its original response.  It explained that it had determined that “section d” referred to section 8(3)(d) of the 1997 Act and issued the Applicant with a notice, under regulation 10(4)(a) of the EIRs, that it did not hold any information falling within scope of his request.
8. On the same day, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of the Freedom of Information (Scotland) Act 2002 (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 he was dissatisfied with the outcome of the Authority’s review because he did not consider it credible that the Authority did not hold information relevant to his request.
9. The Commissioner investigated and issued Decision 151/2024[1], which required the Authority to carry out a fresh review and to provide the Applicant with a revised review outcome.
10. On 18 July 2024, the Authority wrote to the Applicant requesting clarification of the Applicant’s request.
11. On 30 July 2024, the Applicant clarified the scope of his request as being for “all information held by [the Authority] in relation to section d including the reason why it was not included in the Authority’s response”.  (The full text of his clarified request is reproduced in Appendix 1 below.)
12. On 2 August 2024, the Authority requested further clarification from the Applicant – specifically whether (in view of other correspondence it had received from him) his request only related to headstones in cemeteries.
13. On the same day, the Applicant responded and confirmed that his request for information about section d solely related to cemeteries.  However, he commented that there “may be information regarding 'the reason why it was not included in your response' that does not specifically mention cemeteries.”
14. On 30 August 2024, the Authority notified the Applicant of the outcome of its fresh review, which stated that “[n]othing directly within the scope of the request was identified”.  However, by way of advice and assistance, it provided him with several documents to give “a wider overview to the practice adopted in relation to the headstone safety checks carried out across the Scottish Borders”.
15. On 4 September 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 that he was dissatisfied with the outcome of the Authority’s review because he believed it held information relevant to his request, particularly since the documents it had provided to him that it thought may be of interest included information relating to section 8(3)(d) of the 1997 Act.
16. The Commissioner investigated and issued Decision 046/2025[2], which found that the Authority had failed to accurately interpret the request, failed to satisfy him that it had correctly identified and located all information relevant to the request and incorrectly informed the Applicant that there was no information in scope.   He require the Authority to carry out adequate, proportionate searches for the information requested and provide the Applicant with a revised review outcome.
17. On 7 April 2025, the Authority notified the Applicant of the outcome of its fresh review, which acknowledged that it had failed to identify material in scope of his request, but advising him that all the information it held had already been provided to him.
18. On the same day, 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 he was dissatisfied with the outcome of the Authority’s review because he did not consider it credible that no further information was held. 

Investigation

19. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
20. On 20 May 2025, the Authority was notified in writing that the Applicant had made a valid application.  The case was subsequently allocated to an investigating officer.
21. 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 related to its interpretation of the request the searches it had carried out. 

Commissioner’s analysis and findings

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

Application of the EIRs 

23. Where information falls within the scope of the definition of “environmental information” in regulation 2(1) of the EIRs, a person has a right to access it (and the public authority a corresponding obligation to respond) under the EIRs, subject to various restrictions and exceptions contained in the EIRs.
24. The Commissioner is satisfied that the information requested falls within the definition of environmental information in regulation 2(1) of the EIRs (particularly paragraphs (a), (c) and (f) of that definition).
25. The Applicant did not challenge the Authority’s decision to deal with the request as one for environmental information.  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 

26. Regulation 5(1) of the EIRs (subject to the various qualifications contained in regulations 6 to 12) 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. 

Information considered out of scope

27. During the investigation, the Authority provided the Commissioner with documents that related to the Applicant’s concerns, but which it did not consider fell within the scope of his request.
28. The Commissioner agrees that almost all of these documents – which relate to cemeteries more broadly or to the Authority’s complaints process – are do not fall within the scope of the Applicant’s request since they do not relate to section 8(3)(d) of the 1997 Act.
29. However, the Commissioner identified a small section of text that referred to an element of section 8(3) of the 1997 Act, which, when read in the context provided, he considered that it likely related to 8(3)(d) specifically.  He therefore asked the Authority whether it considered this section of text fell within the scope of the Applicant’s request.
30. Having reviewed the section of text, the Authority confirmed that, while it did not directly refer to section 8(3)(d) of the 1997 Act, it acknowledged that the context pointed toward this being the section being referred to.  It said that it therefore considered this information fell within the scope of the Applicant’s request and that it did not consider any exception should be applied to withhold it.
31. The Commissioner accepts that the section of text contains an indirect reference.  However, the reference is not so indirect or vague as to no longer meaningfully relate to section 8(3)(d) of the 1997 Act.  While he acknowledges that the indirect nature of the reference complicated identification, the Commissioner considers that the Authority (with its knowledge of the issues in this case) should have been able to correctly interpret and identify this information as falling within the scope of the Applicant’s request by itself – and by the time of review at the latest.
32. In this respect, the Commissioner finds that the Authority failed to comply with regulation 5(1) of the EIRs.  He requires the Authority to disclose this information to the Applicant. 

Interpretation of the request

33. In Decision 046/2025, the Commissioner set out (at paragraphs 30 and 31) that he considered the Applicant’s request could be broken down into two separate parts and listed a number of questions he considered the Authority must consider in order to respond fully and accurately to the request.  He also commented that he was “concerned that the Authority has yet to interpret the request correctly”.
34. During the investigation, the Commissioner therefore invited the Authority to comment on how it addressed his concerns with its interpretation of the Applicant’s request.
35. The Authority supplied a copy of the request it had circulated internally to staff when asking that they provide evidence of the searches (in response to Decision 046/2025) for information relevant to the Applicant’s request.  It explained that it considered that this request addressed the Commissioner’s question on how it had addressed his concerns with its interpretation of the Applicant’s request.
36. While the Commissioner recognises that the internal request supplied by the Authority provides significant detail on the background to and reason for the request being made (i.e. to allow it to comply with Decision 046/2025), he has not identified any specific evidence that this request to staff addresses his particular concerns with its interpretation of the Applicant’s request.  While it includes the text of that request, it does not provide a detailed explanation of how the Authority interpreted the request, an instruction to take particular care with interpretation, a definition of key terms, an offer to discuss interpretation or any other measures to prevent further misinterpretation.
37. While simply providing the text of the Applicant’s request will often be adequate, the Commissioner considers that in a case such as this – where he has already found the Authority’s interpretation to be lacking – it would have been appropriate for the Authority to have taken further steps to ensure the Applicant’s request was interpreted accurately.  Had it done so, he considers this would likely have assisted the Authority in identifying the indirect reference discussed earlier. 

Searches

38. In considering whether a Scottish public authority holds the requested information in any given case, the Commissioner must be satisfied that the authority has carried out adequate, proportionate searches in the circumstances, taking account of the terms of the request and all other relevant circumstances.
39. The Commissioner will consider the scope, quality, thoroughness and results of those searches, applying the civil standard of proof (the balance of probabilities).  Where appropriate, he will also consider any reasons offered by the public authority to explain why it does not, or could not reasonably be expected to, hold the information.
40. The Applicant did not consider it credible that no further information was held.  In particular, he considered that the Authority’s service director, in whose name the complaint response was issued, should have received further information (including legal advice) relating to his complaint.
41. The Authority explained that the service director would not have received the full detail of the investigation, unless specifically requested.  In this case, it confirmed that the service director did not request the full detail of the investigation as the response contained sufficient information for him to determine that he was satisfied that the response was fit to be issued.
42. However, given the Applicant’s specific interest in information held by the service director, the Authority carried out a search for information relating to this case and provided the Commissioner with copies of the documents identified.  It also provided evidence that it had, again, asked relevant staff from a range of teams to conduct searches.
43. Following a request from the Commissioner, the Authority also inspected records relating to the underlying complaint.

The Commissioner’s view

44. The Commissioner is concerned that the Authority required to be prompted to search records held by the service director and in the original complaint file.  While the Applicant has been clear that the scope of the first part of his request is not limited to his complaint (instead covering all cemeteries), the second part of his request is clearly and specifically directed at information relating to his underlying complaint.
45. Consequently, the Commissioner considers that it could be reasonably anticipated that information relating to the Applicant’s complaint, including information held by the official responsible for signing the complaint response, might fall within the scope of the Applicant’s request.
46. The Commissioner has carefully considered the submissions from both parties, together with the information identified and the further searches conducted during his investigation.  Having done so, he is satisfied that the searches now carried out by the Authority would have been capable of identifying any relevant documents.
47. However, as discussed above, the Authority failed to identify all of the relevant information within these documents.  Having reviewed the documents identified by the Authority, the Commissioner has identified no further information that falls within the scope of the Applicant’s request.
48. The Commissioner is therefore satisfied, subject to the disclosure of the small amount of information deemed out of scope by the Authority that he has found to be in scope, that the Authority holds no further information relevant to Applicant’s request in addition to that already identified and disclosed to him.

Decision 

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

Specifically, the Commissioner finds that the Authority failed to comply with regulation 5(1) of the EIRs by failing to disclose to the Applicant a small amount of information that it had wrongly deemed to fall out of the scope of his request.

However, the Commissioner finds that the Authority otherwise complied with regulation 5(1) of the EIRs by satisfying him that (with the exception of the small amount of information described above) it holds no further information relevant to Applicant’s request in addition to that already identified and disclosed to him.

The Commissioner requires the Authority to provide the Applicant with the information it wrongly deemed to fall out of the scope of his request, 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 

28 August 2025

Appendix 1: Clarification of the request

“I require all information held by the council in relation to section d including the reason why it was not included in your response." 

Section d ) states 'and (d)that notice in writing justifying in detail the carrying out of the works was given to the planning authority as soon as reasonably practicable.' 

This may be in the form of meeting notes, emails, teams chats (if used), notes from verbal conversations and computer records that occured from the time my initial complaint was received by the council, 28th July 2021, to the date the council sent their final response, 22 July 2022. This would include records that were sent or received or made by Planning Enforcement or any other council officer where the information pertains to Section d ).”