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Decision 234/2025

Decision 234/2025: Communications relating to a specified building


Authority: University of St Andrews
Case Ref: 202400692
 

Summary

The Applicant asked the Authority for information related to fire risk assessments for installations affecting the Irvine Building and related communications with the Scottish Fire and Rescue Service (SFRS).  The Authority disclosed some information but withheld other information. The Commissioner investigated and found that the Authority had failed to fully comply with FOISA and the EIRs in responding to the request.  However, he was satisfied that the Authority did not hold any further recorded information that fell within scope of part 3 of the Applicant’s request.

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); 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) (Duty to make environmental information available on request); 17(1), (2)(a), (b) and (f) (Enforcement and appeal provisions).

Background

  1. On 9 February 2024, the Applicant made a request for information to the Authority.  He provided some background to his request, and asked for the following information: 

    1. an explanation of the process which allows the most recent implementation of such measures, including an indication of exactly who authorises each stage of the operation and when they obtain sign-off from appropriately qualified person [part 1]

    2. the fire risk assessments which will have been carried out in advance of the installations affecting the Irvine Building in November 2023 and prior to current installations [part 2], and 

    3. a copy of all non-dormitory communications between SFRS and the Authority [part 3].

  2. On 19 February 2024, the Authority sought clarification of the Applicant’s request:

  • For part 1, it said that it understood that the information requested was for “any documented process in relation to the erection of temporary restrictions within buildings for planned events” and asked the Applicant to confirm this

  • For part 3, it asked the Applicant what he meant by “non-dormitory”, what period was referred to and if he could be “more specific in terms of the focus of the communications for example, communication exchanges in relation to the temporary arrangements put in place in the Irvine Building in November 2023”.

  1. On 20 February 2024, the Applicant clarified his request as follows:

  • For part 1, he said that he wanted to know “what is the process, who is responsible at each stage, and where is the documented evidence that a correct procedure has been followed both in November 2023 for graduation and in February 2024 for the student events.” 

  • For part 3, he explained that a named Watch Commander in the SFRS had stated that the SFRS had been in touch by letter with the Authority regarding fire and evacuation risk assessments in November/December 2023 and since then. He suggested that the Vice-Principal (Governance), Director of Environmental Health and Safety Services and Fire Officers would have been copied in.  He also confirmed that by “non-dormitory”, he meant “any non-residential University buildings, i.e. those without sleeping accommodation” and that he wished to see any communications from SFRS from 1 November 2023 to the date of his request.

  1. The Authority responded on 8 March 2024 under FOISA in the following terms: 

  • For part 1 of the Applicant’s request, it applied the exemption in section 25(1) of FOISA.  It said this information was otherwise accessible to the Applicant through his role as a UCU Health and Safety representative and that it would be provided to him outwith FOISA on request

  • For part 2 of the Applicant’s request, it confirmed that there was no documented process at the current time.  It therefore issued him with a notice, in terms of section 17(1) of FOISA, that it did not hold the information requested

  • For part 3 of the Applicant’s request, it stated that it was “in the process of liaising with relevant colleagues” and would provide a response under separate cover in this regard “prior to the deadline date of 20 March 2024”.

  1. On 21 March 2024, the Applicant wrote to the Authority requesting a review of its decision. He asked the Authority, in order “to not delay the process further”, to “continue with the provision under this FOI request”. He also asked that the Authority “pass on the details of this to the legal team who I believe can handle the review as per section 20 [of FOISA].  I have checked with colleagues in UCU committee, and they have confirmed that in the past this has been possible at moments where there are constraints in delivery.  Hopefully this proposed solution to the issues you identify is practical for all concerned.”
  2. The Authority notified the Applicant of the outcome of its review on 12 April 2024 in the following terms:

  • it said that his requirement for review had expressed dissatisfaction that the Authority had not responded to part 3 of his request

  • it apologised for not responding to part 3 of his request within the statutory timescale

  • it established that a single email was held in relation to part 3 of his request, which it disclosed to him (subject to the redaction of third-party personal data).

  1. On 17 May 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 for several reasons, namely: 

  • “[n]on-response in the time available” 

  • there may be additional relevant material from the SFRS that the Authority had not identified or disclosed

  • the original information requested was in the public interest but had been deleted by the Authority. 

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 14 June 2024, the Authority was notified in writing that the Applicant had made a valid application.  The case was subsequently 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 related to why it responded to the Applicant’s request solely under FOISA and the searches it had carried out in response to his request.
  4. During the investigation, the Authority offered to meet with Applicant to review the information he had requested and how it had dealt with his request.  This offer was communicated to the Applicant, but he said that he wished for the Commissioner to consider his application and reach a decision on the Authority’s compliance with its statutory duties under FOI law.

Commissioner’s analysis and findings

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

Scope of the investigation

  1. The right of application to the Commissioner under section 47(1) of FOISA depends on the applicant being dissatisfied with either the outcome of the public authority's review or its failure to carry one out when required to do so, and consequently he cannot consider matters not raised by the applicant in requiring a review.
  2. The Commissioner has carefully considered the wording of the Applicant’s requirement for review (set out at paragraph 5).  Having done so, he agrees with the Authority that it is limited to raising dissatisfaction with the Authority’s failure to respond to part 3 of his request.
  3. Although the dissatisfaction expressed by the Applicant in his application to the Commissioner could be read as wider than that expressed in his requirement for review, the Commissioner is – for the reasons set out in paragraph 13 – limited to only considering whether the Authority complied with FOI law in responding to part 3 of his request.
  4. As the Applicant did not express dissatisfaction with the Authority’s decision to withhold some information as third party personal data from the information it disclosed to him in response to part 3 of his request, the Commissioner will not consider whether the Authority was entitled to withhold that information.
  5. The Commissioner’s decision will therefore only consider whether the Authority held further information relevant to part 3 of the Applicant’s request that it had failed to identify and disclose to him. 

Application of the EIRs

  1. 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.
  2. The Authority was asked why it responded to the Applicant’s request solely in terms of FOISA.  Having reconsidered the request, the Authority said that it was now of the view that the information contained within fire risk assessments and information contained in two emails fell within the definition of environmental information in regulation 2(1) of the EIRs.
  3. The Commissioner has considered the information requested in the context of the definition of "environmental information" in regulation 2(1) of the EIRs.  Having done so, he is satisfied that the information requested by the Applicant in part three of his request would fall within the definition in regulation 2(1) of the EIRs (particularly paragraphs (b), (c) and (f)).

Section 39(2) – Environmental information

  1. 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.
  2. In this case, the Commissioner is of the view that the Authority could have applied the exemption in section 39(2) of FOISA to part 3 of the Applicant’s request, given his conclusion that the information requested is environmental information.
  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 in handling the request in line with the requirements of the EIRs outweighs any public interest in disclosing the information under FOISA.
  4. As the Authority should have considered part 3 of the Applicant’s request under the EIRs, the Commissioner must find that the Authority failed to comply with regulation 5(1) of the EIRs in this respect.
  5. The Commissioner will consider the request in what follows solely in terms of the EIRs.

Regulation 5(1) of the EIRs – Duty to make environmental information available

  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 the information held by an 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. As stated above, the Commissioner’s decision will only consider whether the Authority held further information relevant to part 3 of the Applicant’s request that it had failed to identify and disclose to him. 

The Applicant’s submissions

  1. The Applicant explained that he believed that there may be additional information relevant to part 3 of his request that the Authority had failed to identify and disclose to him.
  2. The Applicant also referred to information, which he said was in the public interest and would have fallen within the scope of part 3 of his request, having been deleted by the Authority.  Specifically, he noted that the Authority had said an email from SFRS had been deleted but that it had provided no date of deletion.  He therefore said it was not clear whether the Authority did not hold the email at the time of his request or whether it did not hold it at the time of the review.
  3. The Applicant noted that the Authority had provided him (after the date of its review outcome) with the content of the email from SFRS (dated 27 November 2023) that it said had been deleted.

The Authority’s submissions

  1. The Authority submitted that the only information it held in relation to part 3 of the Applicant’s request were the two emails (dated 27 and 28 November 2023), which it had already partially disclosed (subject to the redaction of third party personal data) to the Applicant.  
  2. To determine what information it held in relation to part 3 of the Applicant’s request, the Authority explained that it had identified the office holders listed in the (clarified) request as “potential sources”, i.e. the Director of Environmental Health and Safety Services, the Vice-Principal (Governance) and the Fire Officer.
  3. The Vice-Principal (Governance) confirmed that they held no relevant information and said that any such information would be held by Estates and Environmental Health and Safety Services.  The Director of Environmental Health and Safety Services also confirmed that they held no relevant information but asked the Assistant Director of Estates, Health and Safety Project Manager, and the Fire Officer to search for any relevant information.  The Authority explained that it provided a copy of part 3 of the Applicant’s request to these office holders to be used as search terms when undertaking searches.
  4. The above office holders responded as follows:

  • The Health and Safety Project Manager confirmed that they held no relevant information

  • The Assistant Director Estates also confirmed that they held no relevant information”

  • The Fire Officer explained that an email (dated 28 November 2023) had been sent to the named Watch Commander referenced in part 3 of the Applicant’s (clarified) request, a copy of which was identified and located.  

  1. The Authority noted that the email dated 28 November 2023 referred to an email received from the named Watch Commander dated 27 November 2023.  It explained that it had asked the Director of Environmental Health and Safety Services and the Fire Officer to provide a copy of that email, if it was still held.
  2. The Fire Officer had confirmed that they no longer held a copy of that email.  As context, they said that the email had been received and deleted on the same day after a telephone conversation between the Authority and SFRS.  The Authority noted that the email dated 28 November 2023 that it had partially disclosed to the Applicant was not part of an email chain, which it considered supported that the email dated 27 November was not held and had been deleted, as described.
  3. The Applicant wrote to the Authority, following the issue of its review outcome on 12 April 2024, to specifically request the email dated 27 November 2023 that the email dated 28 November 2023 referred to. The Authority reiterated that the 27 November 2023 email had been deleted, but it said that it found that the content of that email had been extracted and copied into another document. It disclosed the content of that email to the Applicant (subject to the redaction of third party personal data).
  4. The Authority explained that it believed it was human error that it had not been remembered or recognised that a copy of that email had been inserted into a separate document prior to the original email being deleted.

The Commissioner’s view

  1. The Commissioner has taken account of the submissions provided by both the Applicant and the Authority, including the Applicant’s belief that the Authority held further information falling within the scope of part 3 request of his request that it had failed to identify and disclose to him.  
  2. The standard of proof to determine whether a public authority holds information is the civil standard of the balance of probabilities.  In determining where the balance lies, the Commissioner considers the scope, quality and thoroughness and the results of searches carried out by the public authority.  He also considers, where appropriate, any reasons offered by the public authority to explain why it does not hold the information.
  3. Having considered the case in detail, in particular the submissions provided by the Authority regarding the searches it had undertaken, the Commissioner is satisfied that the Authority does not (and did not, at the time the request was received) hold any further recorded information.
  4. The Commissioner accepts that the Authority took adequate and proportionate steps to establish the information it held which fell within the scope of the Applicant’s request and he is satisfied, on the balance of probabilities, that it does not (and did not, on receipt of the request) hold any further relevant information.  He considers the Authority’s searches were reasonable, in the sense of those tasked to carry them out and the locations searched.
  5. While the Applicant believed and expected further information to be held by the Authority, the Commissioner is satisfied that this was not the case.  Whether a public authority should hold information which it does not hold is not a matter for the Commissioner to decide, as a question of compliance with Part 1 of FOISA.  He can only pursue the question of whether the Authority has identified, located and provided the Applicant with all relevant information in relation to part 3 of his request.
  6. For these reasons, the Commissioner will not consider further the Applicant’s dissatisfaction with the Authority’s decision to delete certain information prior to him submitting his request.
  7. In all the circumstances, therefore, Commissioner is satisfied, on the balance of probabilities, that the Authority does not (and did not, on receipt of the request) hold any further information – other than that already identified – falling within the scope of this part of the Applicant’s request.
  8. However, as stated above, the Authority disclosed to the Applicant the content of an email that fell within the scope of part 3 of his request after it had issued its review outcome.  The Authority should have disclosed that information to the Applicant by the date of its review outcome (at the latest).  In this respect, the Commissioner must therefore find that the Authority failed to comply with regulation 5(1) of the EIRs.

Timescales

  1. The Applicant raised dissatisfaction in his application with the time taken by the Authority to comply with his request and requirement for review, as well as it “stopping the clock” when seeking clarification of his request.
  2. As the Applicant first raised these matters of dissatisfaction in his application, the Commissioner can only make a formal finding in relation to whether the Authority responded to his requirement for review on time (as that relates to an issue first raised in the review outcome).
  3. However, the Commissioner would like to note that is appropriate for public authorities to seek clarification of requests that they consider unclear (provided the request for clarification is reasonable).
  4. That said, the Scottish Ministers Code of Practice on the discharge of functions under FOISA and the EIRs (the Section 60 Code[1]) is clear (at paragraph 5.4.1) that it is good practice for public authorities to seek clarification immediately, given the statutory 20 working-day deadline for responding to a request will not start until clarification has then been received from the applicant.  The Commissioner would urge the Authority to ensure that, wherever clarification is genuinely required, that it seeks to obtain it as soon as reasonably possible.
  5. Section 21(1) of FOISA gives Scottish public authorities a maximum of 20 working days following the date of receipt of the requirement to comply with a requirement for review.  This is subject to qualifications which are not relevant in this case.  The same timescale is laid down by regulation 16(4) of the EIRs.
  6. The Applicant submitted his requirement for review on 21 March 2024, meaning the deadline for the Authority to respond was 19 April 2024.  It is therefore a matter of fact that the Authority provided a response to the Applicant’s requirement for review within the 20 working days required by FOISA and the EIRs.
  7. However, as stated above, the Authority should have disclosed the email it identified following further correspondence from the Applicant (which postdated the review outcome) at the date of the review outcome (at the latest).

Decision 

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

Firstly, the Authority failed to identify the information requested in part 3 of the Applicant’s request as environmental information in terms of regulation 2(1) of the EIRs and so failed to deal with the request for that information under the EIRs.

Secondly, the Authority failed to identify all of the information that fell within the scope of the request by the time it issued its review outcome (and thereby failed to comply with regulation 5(1))).

However, the Commissioner is satisfied, on balance, that the Authority has now identified and disclosed to the Applicant (subject to third party personal data redactions) all of the information it held that fell within the scope of part 3 of his request.

In the circumstances, the Commissioner does not require the Authority to take any action in response to 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 

 

29 September 2025