Decision 266/2025:  Complaint investigation details

Authority: South Lanarkshire Council
Case Ref: 202401535
 

Summary

The Applicant asked the Authority for information relating to investigations resulting from complaints he made regarding Council Tax Reduction claims submitted in 2017 and 2021.  The Authority told the Applicant that it did not hold the information requested.  The Commissioner investigated and was satisfied that the Authority did not hold the information requested.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2), (4) and (6) (General entitlement); 17(1)(Notice that information is not held); 47(1) and (2) (Application for decision by Commissioner).

Background

1. On 23 October 2021, the Applicant made a request for information to the Authority.  The Applicant asked for the documents related to the Authority’s investigations resulting from his complaints that its online form did not accurately record what he declared when he first applied for Council Tax Reduction in September 2017 and again in June and July 2021.
2. The Applicant clarified that by “documents related” he meant reports, internal letters, emails and all other documents that were exchanged within the Authority and between whoever checked or tested how its online form works.
3. In short, the Applicant stated that he required all the relevant documentation that showed how the Authority investigated his complaints that its online form did not record accurately what was declared by applicants for Council Tax Reduction in 2017 and 2021.
4. The Authority responded on 15 December 2021, but it failed to do so in terms of FOISA. The Authority explained that:

• the issue raised by the Applicant relating to the online review form had already been addressed on various occasions in previous correspondence

• the online review form had only been in operation since April 2021, and it was not available to complete previously

• the screenshots submitted by the Applicant had been used to successfully update his claim

• the concerns raised in relation to the online form were noted and had been investigated, but it was unable to replicate them

• the “conversations” it had with its software supplier do not form part of the Applicant’s request

5. On 19 December 2021, the Applicant wrote to the Authority requesting a review of its decision. The Applicant stated that he was dissatisfied with the Authority’s decision for the following reasons:

• its response was late

• its response was confusing, vague and failed to specify the legal reasons for not providing him with the information requested  

• he had previously completed an online Council Tax Reduction form when he first applied for Council Tax Reduction, which was years before April 2021, so he did not understand the Authority’s position that the online review form had only been in operation since April 2021

• he had not been provided with documentation relating to the investigation/tests carried out in relation to the concerns raised regarding the online form.

• he did not understand why “conversations” between the Authority and its software supplier do not fall within the scope of his request and reiterated that he was seeking information relating to the investigation resulting from his complaint that its online form did not accurately record what he had declared.

6. The Authority notified the Applicant of the outcome of its review on 26 April 2022[1].  The Authority acknowledged that it had not responded to the Applicant’s information request in terms of FOISA, and issued him with a notice, under section 17 of FOISA, that it did not hold the requested information.  The Authority explained that, as the Applicant had submitted screen shots of the completed pages of the online form (rather than submitting the online form), no investigation of his complaints could be undertaken, and it therefore did not hold any of the information he had requested.  The Authority also stated that whether any investigations could have been carried out was not something it was required to respond to under FOISA.
7. On 10 May 2022, 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 for the following reasons:

• he had made separate requests for information about his claims in 2017 and 2021, and the Authority had not made clear in its response which year it was referring to  

• he disagreed that the Authority did not hold the information requested, particularly since it had previously said it was investigating his concerns (before stating, in its review response, that there was no investigation).

8. Following an investigation, the Commissioner issued Decision 104/2024[2], which found that the Authority had partially complied with Part 1 of FOISA in responding to the request made by the Applicant.  Specifically, the Commissioner found that:

• in relation to part one of the Applicant’s request (the 2017 claim), the Authority had failed to accurately interpret this part of his request and to provide a response to it.  He therefore found that the Authority failed to comply with section 1(1) of FOISA and required that it reconsider this part of the Applicant’s request, conduct adequate searches and to issue a fresh review outcome to the Applicant, in accordance with section 21(4) of FOISA.

• in relation to part two of the Applicant’s request (the 2021 claim), the Authority complied with Part 1 of FOISA by issuing the Applicant with a notice, under section 17(1), that it did not hold the information requested.

9. The Authority notified the Applicant of the outcome of its fresh review outcome on 3 July 2024.  The Authority advised the Applicant that adequate and proportionate searches had been carried out by an experienced member of Finance and Corporate Resources and that no relevant information had been identified.  The Authority therefore issued the Applicant with a notice, under section 17(1) of FOISA, that it did not hold the information requested.
10. On 25 November 2024, 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 revised review because he did not believe that the Authority did not hold the information requested and because he considered that it had failed to adequately evidence, or explain, what steps it had taken to establish that it did not hold the information requested.

Investigation

11. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
12. On 15 January 2025, the Authority was notified in writing that the Applicant had made a valid application.  The case was subsequently allocated to an investigating officer.
13. 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 that it did not hold the information requested.

Commissioner’s analysis and findings

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

Section 17(1) of FOISA – Notice that information is not held

15. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority which holds it is entitled to be given that information by the public authority, subject to qualifications which, by virtue of section 1(6) of FOISA, allow Scottish public authorities to withhold information or charge a fee for it.  The qualifications contained in section 1(6) are not applicable in this case.
16. The information to be given is that held by the Authority at the time the request is received, as defined by section 1(4). This is not necessarily to be equated with information that an applicant believes the public authority should hold. If no such information is held by the public authority, section 17(1) of FOISA requires the authority to give the applicant notice in writing to that effect.
17. 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 of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
18. The Commissioner also considers, where appropriate, any reason 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 recorded information is (or was, at the time the request was received) held by the public authority.

The Applicant’s submissions

19. The Applicant’s application to the Commissioner set out in detail his dissatisfaction with the Authority’s review outcome.
20. The Commissioner has fully considered the dissatisfaction expressed by the Applicant, but he will only summarise in his decision notice what he considers to be the key elements of these submissions (to the extent they are relevant to whether the Authority was entitled to inform him, under section 17(1) of FOISA, that it did not hold the information requested).
21. In essence, the Applicant’s position is that he believes that the Authority does hold the information requested and that the Authority had failed to adequately evidence or explain what steps it had taken to establish that it did not hold the information requested.
22. More specifically, the Applicant submitted that:

• the Authority had failed to comply with section 21(5) of FOISA by failing to give reasons for issuing a notice, under section 17(1), that it did not hold the information requested.  He argued that a simple description that searches had been carried out by an “experienced member of staff” was, without further detail, inadequate.

• the Authority had deprived him of the opportunity to check whether searches had been carried out or, if they had been, whether they were adequate (given the lack of detail on the person carrying out the searches and the specifics of the searches carried out).  He said that this prevented him from being able to make arguments on whether the searches were relevant and thorough.

• the Authority had provided no evidence that any searches had taken place.  He described the situation as: an anonymous Authority official supposedly checking an unnamed database to which only the Authority has access.  He described this process as “opaque” and said that it defeated the purpose of FOISA, which is to ensure transparency.

• he was unable to hold the Authority accountable given there was no transparency on what, if any, information it held on his case

• if the Commissioner uncritically accepted the Authority’s claim that it did not hold the information requested, this would show bias in favour of the Authority as the Commissioner had not taken his word for what information is held by the Authority.

• the Authority had claimed that it had “searched thoroughly for documents in all existing databases using all possible key-words”.  He claimed that the Authority had not done this.

The Authority’s submissions

23. By way of background, the Authority explained that the information requested related to an application made by the Applicant for Council Tax reduction in 2017.  The Authority said that the Applicant had used the online application form to input his details and that, while he took screenshots of various pages of the online form containing his details, he did not submit the application online.
24. The Authority explained that the Applicant had then raised issues with the online form, but the Authority had no record of his application as he had not submitted any application online.  The Applicant subsequently sought records of an investigation that he thought should have taken place but in fact did not, meaning that the Authority held no such records.
25. During the investigation, the Authority was asked to confirm its position on whether an online form was submitted by the Applicant in 2017 or not.
26. The Authority confirmed that the Applicant did not submit the form online in 2017.  While the Applicant had partially completed the online form, it remained 95% complete and was never submitted online.   However, the Applicant sent (by post) screenshots of his partially completed (but unsubmitted) online form along with a letter to the Authority.  It explained that the Applicant’s incomplete and unsubmitted online form remained on the Authority’s system in the background and it was used to progress his application.
27. The Authority also explained that it had tried to recreate the issues with the online form that the Applicant had raised, but it had been unable to do so.  It therefore held no record of an “investigation” into these issues.  If it had identified an issue, then this would have been raised further and then there would have been a record.  It considered that the Applicant’s request was seeking the records around an investigation which did not exist.
28. In summary, the Authority submitted that it did not hold the information requested by the Applicant and that his concerns had been thoroughly investigated by both the Authority and the Scottish Public Services Ombudsman (SPSO).  The Authority reiterated that its position remained that the Applicant had not submitted the online form in 2017 and therefore it held no records of an investigation into his complaint regarding the online form.
29. In response to questions on the searches it had taken following Decision 104/2024, the Authority provided the Commissioner with an information search record.  This record detailed the searches undertaken by the experienced member of staff referred to in the Authority’s review outcome (whose name and job title was provided), as well as searches undertaken by two other individuals (whose details were also provided).  Specifically, the Authority searched:

• the Applicant’s personal record within Benefits & Revenue.  Each customer has their own personal record, and every work item (which includes all incoming and outgoing correspondence received into the department from the Applicant and vice versa) relating to the Applicant was reviewed.  No information falling within the scope of the request was identified.

• the email inboxes of three members of staff from the Benefits & Revenue teams.  No information falling within the scope of the request was identified.  (The email inbox of a former member of staff could not be searched as they had left the Authority, and their inbox had been deleted and could not be restored.)

30. The Authority explained that it did not consider further searches necessary as all information received by Benefits & Revenue is stored electronically within a customer’s record.

The Commissioner’s view

31. The Authority confirmed, as it did in its revised review outcome dated 3 July 2024, that it had carried out searches for the information requested by the Applicant as required by Decision 104/2024.  As stated above, the Authority provided evidence of these searches to the Commissioner.
32. The Applicant’s position appears to be that the Authority must search all existing databases using all possible keywords to establish as a matter of fact it holds the information requested.  However, as stated above, the standard of proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities and the Commissioner requires authorities to take adequate and proportionate steps to establish what information is (or is not) held.
33. Given the explanations and submissions provided by the Authority, the Commissioner accepts that the Authority took adequate and proportionate steps in the circumstances to establish if the information was held and he is satisfied, on balance, that it does not (and did not, on receipt of the request) hold the information requested by the Applicant.
34. In the circumstances, the Commissioner considers that the Authority’s searches were reasonable in the sense of who it asked to carry out the searches and the locations searched; he finds that they would be likely to locate the information requested.
35. While the Applicant believed and expected the specified 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 in this context.
36. The Commissioner therefore concludes that the Authority was correct to give the Applicant notice, in terms of section 17(1) of FOISA, that it did not hold the information requested.

Handling matters

37. As stated above, the Applicant raised concerns that the Authority’s revised review outcome had failed to adequately describe the searches that it had carried out.
38. While FOISA does not require public authorities to explain why information is not held,  The Scottish Ministers' Code of Practice on the Discharge of Functions by Scottish Public Authorities under FOISA (the Section 60 Code[3]) provides (at paragraph 9.3.1) that it is good practice to do so.
39. In this case, the Authority noted that the review outcome did specify that searches had been undertaken by “an experienced member of staff who has an excellent working knowledge of the systems and records held during the period in question and currently”.  While it acknowledged that it may be appropriate in some situations to provide further detail, it considered that it had already previously explained to the Applicant on various occasions since 2017 that it held no information falling within the scope of his request.
40. The Commissioner understands the Applicant’s concerns and acknowledges that he would have found it useful for the Authority to have provided him with further details of the searches it had undertaken. However, the Commissioner is satisfied, in the circumstances, that the Authority complied with the Section 60 Code by advising the Applicant that searches had been conducted following the issue of Decision 104/2024.
41. More generally, the Commissioner would encourage public authorities to be mindful that, where an authority issues a response informing the applicant that it does not hold the requested information, it is good practice for an authority to explain why it does not hold the information. Providing information on the searches carried out may make it less likely that an applicant will find it necessary to submit a requirement for review or to make an application to the Commissioner.

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 

31 October 2025