Decision 265/2025:  Communications concerning specified companies regarding letting

Authority:  City of Edinburgh Council
Case Ref:  202300110
 

Summary

The Applicant asked the Authority for communications (external and internal) with, or referring to, specific companies regarding short-term, long-term and holiday lets.  The Authority refused to provide the information requested on the basis that disclosure would, or would be likely to, prejudice substantially the administration of justice.  Following an investigation, the Commissioner accepted that the information had been correctly withheld.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002[1] (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 35(1)(c) (Law enforcement); 47(1) and (2) (Application for decision by Commissioner).

Background

1. On 29 November 2022, the Applicant made a request to the Authority, asking for the following information:

   1. Any written communications the [Authority] has had with [three specified companies].

   2. Any internal [Authority] communications that refer to these companies.

   3. Any communications the [Authority] has had with people or organisations outwith the [Authority] that mentions these companies.

2. Following a request for clarification from the Authority on 19 December 2022, the Applicant refined his request to housing within the Authority’s housing department, more specifically letting – short-term, long-term and holiday lets.
3. The Authority responded to the Applicant’s clarified request on 18 January 2023. It refused to provide the information requested on the basis that disclosure would, or would be likely to prejudice substantially, the administration of justice.  As the information formed part of ongoing legal proceedings, the Authority believed that its release at that time would prejudice substantially the outcome of any subsequent legal action.  In the Authority’s view, the public interest lay in ensuring that that any legal action was not prejudiced by disclosure prior to the completion of proceedings.
4. That same date, the Applicant wrote to the Authority requesting a review of its decision on the basis that he believed that it would be able to provide much of the information in partial or redacted form, rather than withholding it in its entirety.
5. The Authority notified the Applicant of the outcome of its review on 25 January 2023, fully upholding its original decision for the reasons previously stated.
6. On 26 January 2023, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  The Applicant stated that he was dissatisfied with the outcome of the Authority’s review because again he believed it would be able to provide much of the information in partial or redacted form, rather than withholding it in its entirety.

Investigation

7. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
8. On 31 January 2023, and in line with section 49(3)(a) of FOISA, the Commissioner gave the Authority notice in writing of the application and invited its comments, which the Authority provided.
9. The Authority was also asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information.
10. The case was subsequently allocated to an investigating officer.
11. Following consideration of the Authority’s initial comments, the Investigating Officer sought further submissions from the Authority. These focused on the Authority’s justification for withholding the information requested under section 35(1)(c) of FOISA.  The Authority provided the further submissions requested during the investigation.
12. The Applicant was also invited to provide any further submissions he wished to make on the public interest in disclosure of the information being withheld; however, he did not provide any further comments.

Commissioner’s analysis and findings

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

Section 35(1)(c) – Law Enforcement

14. Under section 35(1)(c) of FOISA, information is exempt information if its disclosure would, or would be likely to, prejudice substantially the administration of justice.
15. The Commissioner's guidance on section 35(1)(c)[2] notes, at paragraph 21, that "administration of justice", although not defined in FOISA, could refer to matters relating to the workings of courts and tribunals (i.e. the main bodies responsible for administering justice in Scotland) and other non-adversarial mechanisms.  Examples might include the protection of basic principles such as the right to a fair trial and ensuring that individuals have access to justice.
16. This exemption is subject to the public interest test in section 2(1)(b) of FOISA.

The Applicant’s submissions on the exemption

17. As rehearsed above, in his application to the Commissioner, the Applicant believed that the Authority would be able to provide much of the information requested, either in partial or redacted form, as opposed to fully withholding it.

The Authority’s submissions on the exemption

18. As far as possible, without disclosing the content of the withheld information itself or by revealing information that may prejudice any ongoing legal proceedings or prosecutions, the Commissioner has set out the Authority’s submissions below.
19. The Authority submitted that, at the time of the Applicant’s information request (and also as at 14 May 2025, when its latest submissions were made to the Commissioner), the information related to ongoing prosecutions (brought by both the Authority and two other Scottish public authorities) that linked back to an enforcement case and subsequent offences referred to the Housing Property Chamber, concerning failures to meet property repair standards.  [The First Tier Tribunal Housing and Property Chamber[3] is administered by the Scottish Courts and Tribunals Service and can make decisions and take enforcement action on a number of areas of housing law.]
20. In its initial comments (dated 13 April 2023), the Authority explained that the most recent hearing was in March 2023.  It subsequently stated, in its later submissions, that reports had been submitted and were progressing through the court systems with a court date for certain alleged offences having been set for mid-June 2025.
21. The Authority was concerned that public disclosure of the information could interfere with or hinder these ongoing prosecutions, thereby negatively impacting the outcome.  Acknowledging that the outcome of the Housing Property Chamber case and appeals would be made public, the Authority submitted that the correspondence and proceedings up to that point were not published.
22. In the Authority’s view, the prosecutions in question remained a matter of ongoing concern, and disclosure of the information requested would be highly likely to substantially prejudice its ongoing monitoring of the matter.  As the information related to pending prosecutions, the Authority believed that its disclosure into the public domain would be highly likely to prejudice the investigation, and the prevention and detection of a crime.
23. The Authority submitted that, in this specific case, as processes had initiated when the original information request was received in 2022 (and were still underway), it believed that the release of the information would be prejudicial towards the administration of justice as it would likely adversely affect:

    • the Authority, in being able to undertake its statutory functions and bring forward enforcement against unlawful actions;

    • collaboration between the Authority, Police Scotland and the courts in their ability to prosecute and apprehend;

    • the accused’s right to a fair process which was a pillar in a democratic society governed by the rule of law; and

    • tenants and other individuals, who had been directly impacted by the events necessitating the ongoing investigations, to seek and achieve justice.

24. The Authority therefore believed that disclosure would be likely to prejudice the process of administering justice itself, a process which, under various statutory duties, the Authority was obliged to ensure was completed effectively, in addition to ensuring that its actions would not inadvertently affect any judicial process.
25. Addressing the Applicant’s view that the information could be partially disclosed or redacted, the Authority submitted that the information requested could not be redacted in such a way that its disclosure would be meaningful or useful to the Applicant.

The Commissioner's views on the exemption

26. The Commissioner has considered the submissions received from both the Applicant and the Authority, together with the withheld information itself.  He must look at the circumstances at the time of the Authority’s review outcome, when the matter in question (to which the withheld information relates) was still the subject of live investigations.
27. In the circumstances, the Commissioner accepts that disclosing the information would have prejudiced, or would have been likely to prejudice, substantially, the administration of justice.
28. The Commissioner has also considered whether any of the withheld information could be released in part, or with redactions.  Having done so, he concurs with the Authority’s view that such a disclosure would be meaningless, as only a small amount of administrative content would be capable of being safely disclosed.
29. The Commissioner therefore concludes that the exemption in section 35(1)(c) of FOISA was properly engaged for the requested information at the time of the Authority’s review outcome.
30. The Commissioner will now go on to consider whether the balance of public interest lies in disclosure of the information, as required by section 2(1)(b) of FOISA.

Public interest test – section 35(1)(c)

31. As noted above, the exemption in section 35(1)(c) is subject to the public interest test in section 2(1)(b) of FOISA.  Where this exemption is correctly applied, the Commissioner must consider whether, in all the circumstances of the case, the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.
32. The “public interest” is not defined in FOISA, but has been described as “something which is of serious concern and benefit to the public”, not merely something of individual interest.  The public interest does not mean “of interest to the public” but “in the interest of the public”, i.e. disclosure must serve the interests of the public.

The Authority’s submissions on the public interest

33. In its submissions to the Commissioner, the Authority acknowledged the public interest in demonstrating that it exercised its statutory function of carrying out investigations in relation to licensing matters.
34. However, as the information related to pending prosecutions linked to the companies and disclosure would substantially prejudice those prosecutions, the Authority assessed the public interest favoured allowing it to carry out the statutory functions described without prejudice.

The Commissioner's views on the public interest

35. The Commissioner acknowledges that there is a public interest in knowing how the Authority carries out investigations into licensing matters concerning housing lets, and that it carries out this statutory function thoroughly, and in a fair and non-discriminatory manner.
36. However, the Commissioner also recognises that due weight must be given to the public interest in the proper administration of justice.  In cases such as this, where there is potential for criminal prosecution or other enforcement action in the public interest, it is essential that this is not prejudiced and that the parties concerned are given a fair hearing. In the Commissioner’s view, there is no public interest in disclosing information which could adversely impact the rights of the accused, or the effectiveness of the criminal justice system or other enforcement mechanisms.
37. In all the circumstances of the case, therefore, the Commissioner concludes that the public interest lies in maintaining the exemption, and that the Authority correctly withheld the information requested under the exemption in section 35(1)(c) of FOISA.

Decision

The Commissioner finds that the Authority complied with Part 1 of the Freedom of Information (Scotland) Act 2002 in responding to the information request made by the Applicant.

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

30 October 2025