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Decision 248/2025

Decision 248/2025:  Works at Bennochy Road, Kirkcaldy 

 
Authority: Fife Council
Case Ref: 202401138
 

Summary

The Applicant asked the Authority for all correspondence between the Authority and SGN in relation to roadworks at Bennochy Road, Kirkcaldy.  The Authority disclosed some information and informed the Applicant that it did not hold other information.  During the investigation, the Authority located further relevant information.  The Commissioner found that the Authority had breached the EIRs by failing to identify all information held at the time of the request.  However, he was satisfied, on balance, that the Authority had, by the close of the investigation, identified all information falling within the scope of the request.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2), (4) 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 “environmental information”) (Interpretation); 5(1) (Duty to make environmental information available on request); 10(1), (2) and (4)(a) (Exceptions from duty to make environmental information available); 17(1), (2)(a), (b) and (f) (Enforcement and appeal provisions).

Background

  1. On 6 June 2024, the Applicant made a request for information to the Authority.  He asked for: 

    1) copies of all correspondence between Authority staff and SGN in relation to recent works at Bennochy Road, Kirkcaldy, near Victoria Road Junction (roadworks register ref: SG021-SCN10424/11 (3390845)

    2) minutes of all meetings at which the above works were discussed between Authority staff and SGN staff. 

  2. The Authority responded on 11 July 2024 in terms of the EIRs.  It disclosed correspondence between the Authority and SGN regarding the works referenced in the Applicant’s request, but it withheld some information under the exception in regulation 11(2) of the EIRs.
  3. 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:

  • he did not consider that the Authority had disclosed all of the information relevant to part (1) of his request 

  • the Authority had not provided any information relevant to part (2) of his request. 

  1. The Authority notified the Applicant of the outcome of its review on 15 August 2024, in the following terms:

  • in response to part (1) of the Applicant’s request, the Authority disclosed further information it had identified (subject to some redactions under the exception in regulation 11(2) of the EIRs)

  • in response to part (2) of the Applicant’s request, the Authority issued the Applicant with a notice, in terms of regulation 10(4)(a) of the EIRs, that it did not hold any relevant information

  • the Authority also confirmed, in line with its duty under regulation 9 of the EIRs to provide advice and assistance, that further site meetings and telephone conversations had likely taken place, but there was no requirement for these to be recorded.  It also explained that further email communication may have once been held, but the member of staff who had handled this work no longer worked for the Authority and all email communication had since been destroyed.

  1. On 21 August 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 he was dissatisfied with the outcome of the Authority’s review because he believed the Authority held further information that it had not disclosed to him. 

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 24 September 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 how it established it held no further information that fell within scope of part one of the Applicant’s request and no information that fell within scope of part two of his request. 

Commissioner’s analysis and findings

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

Application of the EIRs

  1. Having considered the subject matter and the terms of the request, the Commissioner accepts the decision of the Authority to deal with the request under the EIRs rather than under FOISA.
  2. The Applicant has not disputed the Authority’s decision to handle its request under the EIRs, and the Commissioner is satisfied, in the circumstances, that the information requested by the Applicant falls within the definition of environmental information set out in regulation 2(1) of the EIRs.

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 accepts that the Authority was entitled to apply the exemption to the information withheld under FOISA, given his conclusion that it is properly classified as 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 responding to the request under the EIRs) outweighs any public interest in disclosing the information under FOISA.  Both regimes are intended to promote 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 entitled to apply section 39(2) of FOISA and consider the Applicant’s information request under the EIRs.
  5. In the circumstances, the Commissioner will consider this case, in what follows, solely in terms of the EIRs. 

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

  1. Regulation 5(1) of the EIRs requires a Scottish public authority which holds the 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, 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 the information available, unless a qualification in regulation 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.

Information disclosed during the investigation

  1. As stated above, the Applicant was dissatisfied with the Authority’s initial response and review outcome as he expected it held further information falling within the scope that it had not identified and disclosed to him.
  2. During the investigation, the Authority identified further information (Appendices 1 to 10) that fell within scope of part one of the Applicant’s request (which it disclosed to him).
  3. The Authority explained that it had identified this further information following a further search of emails, systems note-books and online information.  It apologised that it had not disclosed this information to the Applicant earlier.
  4. The Authority noted that some of the further information it had disclosed had previously been identified as falling in scope of the Applicant’s request.  However, it discovered that the information provided in Appendices 1 to 7 had not been forwarded to the responding service – an error that was not identified at the review stage.
  5. The Authority also explained that it had originally interpreted the Applicant’s request more than he had intended.  It had considered his request to be for correspondence and decisions made in discussions between employees from the Authority and SGN regarding the physical roadworks, rather than the processing of invoices.  However, as the Applicant had clarified in his application that he had expected to be provided with this information, it gathered and provided this information (Appendices 8 and 9) to him.
  6. However, the Authority noted that Appendix 10 (a Roads and Utilities Committee (RAUC) meeting note) had been provided to the Applicant to highlight the information recorded at that meeting.  It said the meeting note showed that no information within the note fell within the scope of the Applicant’s request and that it was provided as part of its duty to provide advice and assistance.
  7. The information disclosed by the Authority during the investigation should have been disclosed to the Applicant by the date of the Authority’s review outcome (at the latest).  The Commissioner must therefore find that the Authority’s failure to disclose this information in response to the initial request or requirement for review was a breach of regulation 5(1) of the EIRs.

Part (1) of the request – does the Authority hold any further information?

  1. As stated above, the Authority identified further information that fell within scope of part (1) of the Applicant’s request (which it disclosed to him).  The question for the Commissioner is whether the Authority holds any further information in addition to that already disclosed to the Applicant (both prior to, and during, his investigation).

The Applicant’s submissions

  1. The Applicant said that he was not satisfied that the Authority had disclosed all of the information it held relevant to part (1) of his request and explained why he believed this to be the case.
  2. Specifically, the Applicant noted in his application that:

  • SGN had sent an email to the Authority on 8 February 2024 specifically requesting approval for their traffic management proposals.  However, no further correspondence was provided to him on this matter.

  • The Authority had only released one copy of the “Application for Temporary Traffic Restrictions for Roadworks Purposes & Other Works” (TTRO) form.  He said this either meant that the Authority had not made SGN submit an amended form to address the errors within the copy released to him, or that the Authority had approved the erroneous form.  (The Applicant listed what he considered to be the errors and anomalies in the form.)

  • Following the submission of the TTRO form, a Legal Temporary Traffic Regulation Order would have to be made.  However, no copy of such Order was provided to him – nor had he been provided with any correspondence relating to amending the Order due to the works being extended for an additional four weeks.

  • He had not received a copy of a neighbour notification letter to the Authority for approval, as per the guidance notes (or any correspondence on this issue).

  • The guidance notes lay out the fee chargeable to SGN for the Authority dealing with the TTRO. However, he had not been provided with any invoice or any correspondence between the Authority and SGN on this matter.

  • As stated above, the works were extended for an additional four weeks.  However, he had not been provided with any written communication between the Authority and SGN relating to additional costs.

  1. As stated above, the Authority disclosed further information to the Applicant during the investigation.  In response to this, the Applicant made the following comments:

  • in relation to Appendices 1-8, he considered that this information should have been provided to him earlier as they both fell within the scope of his request and the Authority’s stated initial interpretation of his request.

  • In relation to Appendix 8 (a traffic light application form) specifically, he noted that the form was for the period from 26 February 2024 to 11 March 2024, but the traffic signals remained on site until the works were completed in late April 2024.  He asked where the amended form to cover that period was and whether the Authority’s position was that no communications took place between the Authority and SGN in terms of that extension.

  • In relation to Appendix 9, he disagreed with the Authority’s interpretation of his request and its reason for not providing this information to him earlier as this information was clearly a communication and clearly related to the named works.

  1. The Applicant also raised the following queries regarding information that the Authority had not provided to him that he believed it held (or should hold):

  • It had not provided him with the “neighbourhood letter” he referred to in his application to the Commissioner.

  • It had not produced any correspondence relating to the increased costs for the additional time period of the road closure.

  • He queried whether it was accurate that, beyond that disclosed to him during the investigation, there had been no further emails or discussions (as meetings or otherwise) between the Authority and FGN about the named works.

The Authority’s submissions

  1. The Authority explained that, on receipt, the request was directed to the service responsible for the works that were carried out.  It said that a discussion then took place between the Technical Engineer responsible for the works and the Technical Inspector involved in the works to identify the relevant information, which was then discussed with the Lead Consultant.
  2. During the review, the Authority identified that the Lead Consultant in post at the time of the works concerned had since left.  It initially thought that the Lead Consultant may have held additional relevant information, but it was later confirmed that correspondence with SGM relating to the roadworks would have been received and held by both the Technical Engineer and the Technical Inspector and that any contact with the Lead Consultant would have been through these individuals.  However, it also checked the email account of the Lead Consultant (after arranging access via its IT service), but this yielded nothing in addition to that already provided by others.
  3. The Authority confirmed that it had searched the inboxes of the Technical Engineer and the Technical Engineer as well as two inboxes relating to traffic restriction orders and traffic management.  These searches were carried out using the search parameters “Bennochy Road”, “Bennochy Bridge”, “SGN”.  It said that further searches were conducted within the Scottish Road Work Register and of notebooks.
  4. The Commissioner asked the Authority to respond to specific concerns raised by the Applicant (set out at paragraph 29) in his application.  The Authority responded as follows:

  • Works had been extended beyond the initial period approved by the TTRO, but this had not been followed up with the correct paperwork.

  • It did not hold an additional Legal Temporary Traffic Regulation Order as SGN had not submitted another TTRO request.

  • Where a traffic light permit is issued, it is sent directly from the Scottish Road Works Register and there is no record of this other than to the person that received it.

  • It did not hold a copy of the “neighbourhood letter” as SGN did not have to send it to the Authority for approval. 

  • It had now provided the Applicant with a copy of the invoice and associated communication on the fee chargeable to SGN for the Authority dealing with the TTRO.

  1. The Authority noted that communication was often carried out in person or via mobile telephone calls, meaning that sometimes no written record existed.  However, it acknowledged that if an extension to work is given it should be recorded on the Scottish Road Works Register by SGN against the works notice and a copy of the notice provided.  In this case, it said that an additional TTRO form should have been submitted.
  2. The Authority said that it understood that the Applicant may remain dissatisfied with the information it held falling within the scope of his request.  It apologised for not disclosing all of the information it held until during the investigation but said that the information the Applicant believed to be missing was not held as the second TTRO was not provided to the Authority and it held no further information relevant to part (1) of his request.
  3. The Commissioner asked the Authority to respond to the Applicant’s queries (set out at paragraph 30) following the disclosure of additional information that it had identified during the investigation.  The Authority maintained, for the reasons previously stated, that it held no further information in addition to that it had already provided to the Applicant. (The Authority had already explained to the Commissioner (at paragraph 35) why it did not hold a copy of the neighbourhood letter referred to by the Applicant.)

The Commissioner’s view

  1. The Commissioner has considered all of the relevant submissions and the terms of part (1) of the Applicant’s request.
  2. Given the explanations and submissions provided, the Commissioner accepts that the Authority, by the close of the investigation, took adequate and proportionate steps in the circumstances to establish if it held any further information (in addition to that disclosed already).
  3. The Commissioner considers that the Authority’s searches were reasonable in the sense of who it asked to carry out the searches, the search terms used and the locations searched.  He finds that they would be capable of locating the information requested.
  4. The Commissioner is therefore satisfied, on balance, that the Authority does not hold any further information falling within the scope of part (1) of the Applicant’s request.
  5. While the Applicant believed and expected more information to be held by the Authority, the Commissioner is satisfied that this was not the case.  As stated in previous decisions, the Commissioner’s remit extends only to the considering whether a Scottish public authority actually holds the relevant information requested and whether it complied with FOISA or the EIRs in responding to a request.  Whether a public authority should hold information which it does not hold is not a matter for the Commissioner to decide, nor does he have any locus, in this context, to determine what information an authority ought to record.
  6. In conclusion, the Commissioner is satisfied that, by the end of the investigation, the Authority had taken adequate, proportionate steps to establish the extent of information held that was relevant to part one of the Applicant’s request and he is satisfied that it does not hold any further information (in addition to that disclosed already).

Part (2) of the request – does the Authority hold any relevant information?

  1. The Authority stated that it held no information falling within the scope of part (2) of the Applicant’s request.
  2. Regulation 10(4)(a) of the EIRs states that a Scottish public authority may refuse to make information available to the extent that it does not hold the information when it received the request
  3. 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 lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
  4. The Commissioner also considers, where appropriate, any reasons 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 information is (or was, at the time the request was received) held by the public authority.  

The Applicant's submissions 

  1. The Applicant said that he was not satisfied that the Authority did not hold any information relevant to part (2) of his request and explained why he believed this to be the case.
  2. Specifically, the Applicant noted in his application that he had been advised by the Roadworks Commissioner’s Office that the Authority had advised it that it had “formally” made the point in the RAUC meeting that works should not take place at Bennochy Road while the Links Market was on.  He said that it followed that either the information provided by the Authority to the Roadworks Commissioner’s Office was not true or that it had withheld, or failed to produce, minutes of the RAUC meeting at which the Authority made the “formal point”.

  3. As stated above, the Authority disclosed further information to the Applicant during the investigation.  In response to this, the Applicant made the following comments in relation to Appendix 10. He noted that the “Links Market” clearly appeared in the minutes as an “event” which was discussed.  He referred to an email the Roadworks Commissioner’s Office (referred to in the preceding paragraph) had sent to him which said that the Authority had confirmed that:

    “… whilst Bennochy Road was not included on [the Authority’s list of roads where works should not take place whilst the Links Market was on, it was [the Authority’s] intention that works should not be underway during this time.  [The Authority] have advised that this point was formally made to public utilities at their regular local coordination meeting.”

  4. The Applicant said that he had confirmed with the Roadworks Commissioner’s Office that the “local coordination meeting” was the RAUC meeting and that these meetings were minuted.  He submitted that that it was not clear why such a “formally made” point would not be specifically mentioned in the minutes.
  5. However, the Applicant said it was clear that the Authority had provided this information to the Roadworks Commissioner’s Office to defend its position that it had fulfilled its obligations in roads coordination duties in direct relation to the named works.  He submitted that the Authority had been content to state, in direct response to a compliant about the named works, that it had particular discussions at the RAUC meeting but that it was now saying that it did not know whether the named works had been discussed at the RAUC meeting.  He said that both positions could not be accurate.

The Authority’s submissions

  1. Following the further searches (set out above) that it carried out during the investigation, the Authority said that it did not hold any relevant information for part (2) of the Applicant’s request.
  2. The Commissioner asked the Authority to respond to the Applicant’s point regarding the information he had received from the Roadworks Commissioner’s Office, which indicated that it may hold information relevant to part (2) of his request.
  3. The Authority explained that it had now provided a copy of the RAUC meeting minute to the Applicant, but it reiterated that it had done so as part of its duty to advise and assist as the minute did not contain any direct discussion regarding the named works.
  4. The Authority therefore maintained that it did not hold any relevant information for part (2) of the Applicant’s request.

The Commissioner's view

  1. The Commissioner has considered all of the relevant submissions and the terms of part (2) of the Applicant’s request.
  2. As rehearsed earlier (at paragraph 41), the Commissioner is satisfied that the Authority’s searches were reasonable in the sense of those tasked to carry them out, the search terms used and the locations searched.
  3. As stated above, the Authority disclosed further information to the Applicant during the investigation.  This included the minutes of the RAUC meeting held in March 2024, which the Authority said did not include “direct discussion” between SGN and the Authority regarding the Works specified in the Applicant’s request.
  4. The Commissioner has reviewed these minutes (which were provided in the form of an Excel spreadsheet, with three tabs.)  While one of the tabs records that Works were taking place on Bennochy road, he accepts that the minutes do not otherwise discuss these works.
  5. While the Applicant believed and expected the information requested in part (2) of his request to be held by the Authority, the Commissioner is satisfied, on balance, that this was not the case.  As stated above, whether a public authority should hold information which it does not hold is not a matter for the Commissioner to decide, nor does he have any locus, in this context, to determine what an authority ought to record.
  6. Consequently, the Commissioner is satisfied, on balance, that the Authority does not hold recorded information which would fulfil part (2) of the Applicant’s request. He therefore concludes, on balance, that the Authority was entitled to rely on the exception in regulation 10(4)(a) of the EIRs in relation to part (2) of the Applicant’s request on the basis that it did not hold the information requested.

The public interest

  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 of the case, the public interest in maintaining the exception outweighs that in making the information available.
  2. The question of whether or not a public authority holds information is a factual one, determined on the balance of probabilities.  If a public authority does not hold the information, then there is no meaningful public interest test that can be undertaken.
  3. In this case, for the reasons set out above, the Commissioner is satisfied that the Authority does not hold any information covered by part (2) of the Applicant’s request (and did not do so on receipt of the request).  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.

Handling matters

  1. In this case, the Authority identified further information falling within the scope of the first part of the Applicant’s request on two separate occasions: first, in response to the Applicant’s requirement for review and, second, in response to questions from the Commissioner during his investigation.
  2. The purpose of the review stage in FOI law is to provide authorities with the opportunity to reconsider their handling of an initial information request prior to an application being made to the Commissioner (if necessary).  However, the Commissioner would urge the Authority to ensure that it carries out adequate and proportionate searches in response to information requests at the first time of asking – and by the review outcome at the latest.  Failure to do so undermines the confidence of requesters in the robustness of the searches carried out by the Authority.
  3. While the Commissioner does not require the Authority to take any action regarding this failure, in response to the Applicant’s application, he has recorded this it as evidence of non-compliance with FOI law for the purposes of his interventions activity.
  4. The Commissioner also notes the Applicant’s concern that the Authority had interpreted his request too narrowly and that, if the Authority was in any doubt of how it should have been interpreted, then it should have sought clarification from him.
  5. The Authority explained that it had not sought clarification from the Applicant as it had not initially considered that its interpretation of his request was incorrect.  It said that it would have been helpful for the Applicant to have clarified his expectations as part of his initial request or his requirement for review.
  6. The Commissioner cannot stress enough the importance of ensuring that the terms of any information request received by a Scottish public authority are clear before proceeding to respond.  He would urge all Scottish public authorities to take steps to clarify with applicants any request which they are unsure of prior to proceeding with them (as provided for by regulation 9 of the EIRs). Equally, he would encourage applicants – where they have concerns about the interpretation of their request – to, where possible, raise these with the Authority as part of their requirement for review.
  7. However, in this case, the Commissioner is satisfied that the Applicant’s request is clear, on its own terms, that he was not seeking information limited to correspondence and decisions made in discussions between employees from the Authority and SGN regarding the physical roadworks.

Decision 

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

The Commissioner finds that the Authority failed to comply with regulation 5(1) of the EIRs by failing to identify, locate and disclose to the Applicant all of the information that fell within scope of part (1) of his request by the date of the review outcome (at the latest).

However, the Commissioner finds that the Authority complied with regulation 5(1) of the EIRs by informing the Applicant that it held no information that fell within scope of part (2) of his request.

Given that he is satisfied, on balance, that the Authority, by the close of the investigation, identified, located and disclosed all of the information that fell within scope of part (1) of the Applicant’s request, the Commissioner does not require the Authority to take any action regarding this failure, 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 


14 October 2025