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Decision 208/2025

Decision 208/2025:  Correspondence relates to the Lord Advocate's reference to the Supreme Court.


Authority: Scottish Ministers
Case Ref: 202201062
 

Summary

The Applicant asked the Authority for correspondence sent to or received by special advisers and ministers on the topic of the Lord Advocate's reference to the Supreme Court.  The Authority refused to comply with the request as the cost of doing so would exceed £600.

The Commissioner investigated and found that the Authority had failed to provide adequate submissions to justify its position.  He required the Authority to carry out new searches and provide the Applicant with a revised review outcome.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 12(1) (Excessive cost of compliance); 47(1) and (2) (Application for decision by Commissioner).

The Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 (the Fees Regulations) regulations 3 (Projected costs); 4 (Fee payable); 5 (Excessive cost – prescribed amount).

Background

  1. On 21 July 2022, the Applicant made a request for information to the Authority.  He asked for: 

    1. Any internal correspondence sent to or received by special advisers and ministers on the topic of the Lord Advocate's reference to the Supreme Court.

    2. This should specifically include correspondence between special advisers on WhatsApp and Signal or text.  Please separately confirm whether any WhatsApp, Signal, or text messages in scope exist when responding to this FOI.

  2. The Authority responded on 16 August 2022 and refused to provide the information on the grounds that section 12(1) of FOISA applied to the request.  It argued that the cost of locating, retrieving and providing the information would exceed the upper cost limit of £600.  The Authority suggested that the Applicant could reduce the scope of his request (to bring it within the cost ceiling).
  3. On 16 August 2022, the Applicant wrote to the Authority requesting a review of its decision. The Applicant stated that he was dissatisfied with the decision because the Authority had not provided an explanation of the cost calculation.  He argued that the Authority’s refusal to provide the information was a delaying tactic.
  4. The Authority notified the Applicant of the outcome of its review on 19 September 2022. It upheld its original decision and provided the Applicant with a breakdown of the costs that would be incurred if it complied with the request.  The Authority again suggested that the Applicant could narrow the scope of his request.
  5. On 26 August 2022, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA, expressed his dissatisfaction with the outcome of the Authority’s review.  He argued that section 12(1) of FOISA did not apply, that the Authority had inflated the cost estimate and the public interest favoured disclosure of the information.

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 17 October 2022, 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, and the case was subsequently allocated to an investigating officer. 

Commissioner’s analysis and findings

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

Section 12(1) (Excessive cost of compliance)

  1. As noted above, the Authority refused to provide the information, under section 12(1) of FOISA, arguing that the cost of complying with the Applicant’s request in full would exceed the £600 limit laid down in the Fees Regulations.
  2. Section 12(1) of FOISA provides that a Scottish public authority is not obliged to comply with a request for information where the estimated cost of doing so would exceed the relevant amount prescribed in the Fees Regulations.  This amount is currently £600 (see regulation 5). Consequently, the Commissioner has no power to require the disclosure of information should he find that the cost of responding to a request for that information would exceed this sum.
  3. The projected costs a Scottish public authority can take into account in relation to a request for information are, according to regulation 3 of the Fees Regulations, the total costs (whether direct or indirect) it reasonably estimates it will incur in locating, retrieving and providing the information requested, in accordance with Part 1 of FOISA.  The maximum hourly rate the authority can charge for staff time is £15 per hour. The authority may not charge for the cost of determining (i) whether it actually holds the information, or (ii) whether or not it should provide the information.

The Authority’s comments

  1. The Authority submitted that the requested information was most likely held by the Referendums Team and associated wider project group that had been working on issues relating to referendums and the Supreme Court Reference.  It explained that this project group spanned several areas, including the Referendums policy team as well as Scottish Government Legal Directorate (SGLD), PCO and Legal Secretary to Lord Advocate (LSLA).
  2. The Authority explained that in the period covered by the request, this group of officials worked on the initial scoping of the project, the decision-making process surrounding the Reference, Bill preparation, and work to prepare for the statement made by the First Minister on the 28th of June.  It added that officials working within this team knew that the information requested would fall across several different areas of the work of the team.
  3. In the course of considering the request and appeal, the Authority provided three estimates of the cost of complying with the request, and these are outlined below.

Cost estimate 1 (review outcome)

  1. In its review outcome, the Authority submitted that responding to the request would incur costs of £1,624.50 (using a £15 per hour staff rate)
  2. The Authority explained that this estimate was based on:

  • 240 minutes to search for relevant information, which identified over 700 documents; 

  • 3,303 minutes estimated for sifting information found; 

  • 2,955 minutes estimated for consideration and redaction. 

  1. It commented that these estimates were based on the number of documents identified from searches, and extrapolating from the time it had taken to perform the sifting and redaction of a sample of 5 documents identified as within scope of the request.
  2. In its submissions to the Commissioner, the Authority provided details of two further cost estimates.  The Authority’s methodology and estimated cost for each estimate is set out below.

Cost estimate 2 (submissions to the Commissioner)

  1. The Authority submitted that it had identified 13 officials (including the case handler) who would be likely to hold information relating to the request.  It estimated that it would take each official an average of 10 minutes to search their inbox/personal storage area, and that the total time for searching would be 130 minutes.
  2. The Authority found that the keyword searches identified a large number of documents which could potentially be within scope of the request. From the returns of the first three officials, it identified that there were potentially 1,227 documents which would need to be considered from these returns alone.  The Authority explained that the documents identified from these three returns were used to inform the remainder of the estimate as it was likely that there would have been substantial duplication from the remainder of the returns.
  3. The Authority explained that it used a sample of 30 documents from the 1,227 returns to determine its cost estimate. It submitted that it took 30 minutes to sift through these documents to determine whether they were within scope, which averaged 1 minute per document.  It assumed if this was the case for the 1,227 documents it would mean that the time taken to sift would be 1,227 minutes just for the returns thus far.
  4. Of the 30 documents the Authority sifted, it identified 27 documents as falling within scope of the request.  If this was replicated across all of the documents, for the purposes of this estimate, the Authority submitted that this would mean that 90% (27/30 x 100) of the 1,227 (1,105) documents would fall within the scope of the request.
  5. The Authority commented that it was likely that most of these 1,105 documents would require redaction prior to disclosure; however, it added that some documents would be released in full or withheld in their entirety and therefore would not be subject to redaction.  Given this, the Authority estimated that 90% of the 1,105 documents (995) would require redaction.  It redacted five of the 995 documents, as a sample, and explained that this took 25 minutes in total, which worked out as five minutes per document. The Authority calculated that the time to redact all 995 documents would be 995 x 5 = 4,975 minutes.
  6. In summary, the Authority submitted that the total time for searching = 130 minutes plus the total time for sifting = 1,227 minute, plus Total time for redactions = 4,975 minutes = 6332 minutes Total resource time, or approximately 105 hours = £1,575.
  7. The Authority argued that this demonstrated that the work required to reach this point would considerably exceed the upper cost limit of £600.  It noted that this did not take into account the need to sift further returns from the individuals asked to undertake additional searches.  In addition, the Authority submitted that a further search would need to be commissioned from Special Advisers and relevant Ministerial Private Offices as they were specifically named in the request.  It considered that undertaking this further work would take it substantially over the cost limit.

Cost estimate 3 (submissions to the Commissioner)

  1. In the same letter that contained cost estimate 2, the Authority notified the Commissioner that it had reconsidered the search methodology used when responding to the initial request to determine whether using a different methodology would sufficiently narrow the search returns to respond within the upper cost limit.  In doing so, it found that the upper cost limit of £600 would still be substantially exceeded.  In later submissions, the Authority confirmed that it wanted to rely solely on the revised methodology used in cost estimate 3.
  2. In its revised methodology, the Authority explained that it had identified four main areas where information relevant to this request was likely to be held.  It listed these as the Referendums Team, SGLD, PCO and LSLA.  It subsequently asked each of these four areas to undertake further searches to review the email exchanges between the individuals referred to in the Applicant’s original request.  The Authority provided the Commissioner with the names and job titles of the individuals (special advisors and Ministers) referred to by the Applicant.
  3. The Authority submitted that these searches returned the following results: 190 items from the Referendums Team, 527 from SGLD and 411 from PCO and LSLA for the period from April 2022 to 21 July 2022, this totalled 1128 returns.  The Authority estimated that it would take each area asked to search their outlook/personal storage on average 5 minutes each. Therefore, it determined the total time for searching would be 20 minutes.
  4. The Authority took a sample of 20 documents from the 1,128 returns and explained that it took a total of 20 minutes to sift through these documents to determine whether they were relevant, resulting in an average sift time of 1 minute per document.  It assumed this would be the same for all of the 1,128 documents, which would result in a sift time of 1,128 minutes.
  5. The Authority submitted that out of the 20 documents sifted, 7 of these documents were out of scope, it therefore assumed that this would be replicated across the documents for the purposes of this estimate. 35% (7/20 x 100) of the 1,128 (395) initial documents would fall out with scope of the request.  It estimated the total documents to be considered would be 733 (noting that this would be 1,128 documents minus 395).
  6. The Authority concluded that it was likely that most of these documents would require redaction prior to release; however, it acknowledged that some would be either released in full or withheld in their entirety and therefore not be subject to redaction.  It estimated that a further 10% of the 733 documents would not require redaction, which would mean that 660 documents would require redaction (the sum of 733 minus 73).  The Authority carried out redactions of five sample documents, which resulted in an average redaction time of 5 minutes per document (25 minutes in total).  Given this, the Authority estimated that the time for redaction would be 660 x 5 = a total of 3,300 minutes.
  7. The Authority explained that its calculations for the total resource time was 20 + 1,128 + 3,300 = 4,448 minutes, or approximately 74 hours, which, at £15 per hour for a grade B2 officer, would be £1,110.
  8. The Authority argued that this demonstrated that the work required to reach this point would considerably exceed the upper cost limit of £600, notwithstanding the need undertake further searches to identify any information saved to its electronic records management system which, due to the passage of time, may have been removed from individual mailboxes.  It considered that undertaking this further work would incur substantially more costs.

The Applicant’s comments

  1. In his requirement for review, the applicant expressed dissatisfaction with the Authority's approach in its initial response.  He noted that the authority had failed to provide a breakdown of its estimated costs, and he viewed this omission as a delaying tactic.
  2. In his application to the Commissioner the Applicant disputed the application of section 12(1) and argued that the estimated cost calculations had been inflated. 

The Commissioner's view on section 12(1)

  1. The Commissioner has carefully considered all relevant submissions and the terms of the request.  He notes that the Authority claims that it was not obliged to comply with the request as the cost of doing so would be more than £600.
  2. In all cases, it falls to the public authority to persuade the Commissioner, with reference to adequate, relevant descriptions and evidence, that the cost of complying with the request would exceed the £600 cost limit.  In this case, the Commissioner is not satisfied that the Authority has achieved this, notwithstanding the opportunity given to provide comments.
  3. During the investigation the Commissioner noted the disparity between the Authority’s search results in the review outcome (700 returns) and the results from the revised search methodology (1,128 returns). Given this discrepancy the Commissioner asked the Authority to provide him with screen shots for the searches carried out by each individual, showing the date range and the keywords used and number of returns for both search methodologies.  The Commissioner noted that if the Authority had not retained evidence of these searches, it should re-do the searches and provide him with the evidence requested. 
  4. The Authority claimed that screenshots of searches were not routinely taken or retained, because there is not a requirement to do so.  It explained that the numbers of results returned are detailed in the revised methodology set out in its submissions to the Commissioner.  It noted that those submissions set out how the searches were carried out, and what search parameters were used.
  5. The Commissioner notes that while paragraph 6.2.3 of the Section 60 Code[1] recommends that authorities should maintain a record of searches, it does not require authorities to retain screen shots of these searches.  However, the Commissioner also notes that the Authority regularly supplies him with screen shots of searches to support its submissions in other cases.  He is not clear why the Authority is so reticent to take screen shots to evidence its searches in this case when it has done so, voluntarily, in the past.  The Commissioner reviewed some of the decisions he has issued over the last year or two, and which involved the Authority, and he found that the Authority had provided screen shots in numerous cases, including decisions 080/2024, 095/2024 and 081/2025.
  6. The Commissioner acknowledges that the Authority is now relying on cost estimate 3 (the revised search methodology) as its preferred calculations for this case, but given the differences between cost estimates 1 and 3, without seeing evidence of the searches (such as screen shots which show the date range, keywords used and results obtained) he cannot verify that the searches undertaken for cost estimate 3 were adequate and thorough.  
  7. Given this, he cannot accept the Authority’s conclusion that the cost of complying with the request would exceed the £600 cost limit.  The Authority has not provided the Commissioner with sufficient evidence to demonstrate the outcome of the searches it has conducted, and the calculations it has provided, are not, by themselves, persuasive.
  8. The Commissioner does not uphold the Authority’s application of section 12(1) of FOISA.


Decision 

The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant by wrongly relying on section 12(1) of FOISA.

The Commissioner requires the Authority to:

  • carry out new searches for the information requested by the Applicant and then either disclose the information or notify the Applicant why the information cannot be provided under a provision in Part 1 or 2 of FOISA;

  • provide the Commissioner with screenshots that evidence the searches it has carried out; and

  • provide the Applicant with a new response to the Applicant’s requirement for review, in the light of the above, in terms of section 21(4) of FOISA.

The Authority must carry out these steps and notify the Applicant of the outcome of its review 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.

 

Euan McCulloch 

Head of Enforcement 

 

29 August 2025