Decision 269/2025:  Information concerning the condition of Ayr Station Hotel

Authority: South Ayrshire Council
Case Ref: 202400578
 

Summary

The Applicant asked the Authority for information relating to the Ayr Station Hotel. The Authority provided some information, withheld other information under various exceptions and considered it did not hold further recorded information falling within the scope of the request.  The Commissioner investigated and found that the Authority had correctly refused to make some information available but that it had wrongly withheld other information which he required it to provide to the Applicant.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 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” and “the Commissioner”) (Interpretation); 5(1) (Duty to make environmental information available on request); 10(1), (2), 4(a), 5(b), (d) (e) and (f) (Exceptions from duty to make environmental information available); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).

Background

1. On 19 December 2023, the Applicant made a request for information to the Authority. It asked for:

   1. Copies of all structural surveys/condition reports held or commissioned by the Authority pertaining to the Ayr Station Hotel since the fire on 25 September 2023.

   2. Copies of all correspondence (email/letter/text) between the Authority and Transport Scotland, Network Rail and Scotrail relating to Ayr Station Hotel since 1 January 2022. 

   3. Copies of all correspondence (email/letter/text) between the Leader of the Authority and all Officers relating to Ayr Station Hotel since the fire on 25 September 2023.  

   4. Copies of all instructions issued by the Authority to the contractors employed to make Ayr Station Hotel safe since the fire on 25 September 2023.

2. The Authority did not respond.
3. On 8 and 20 February 2024, the Applicant wrote to the Authority requesting a review as it had failed to provide a response.
4. Following an appeal to the Scottish Information Commissioner Decision 074/2024[1] was issued.  This found that although the Authority had provided the Applicant with a response to its requirement for review on 15 April 2024, it had failed to comply with the statutory timescales laid down in the legislation.
5. The Authority notified the Applicant of the outcome of its review on 15 April 2024. The Authority informed the Applicant that it had treated its request as an EIR request under the Environmental Information (Scotland) Regulations 2004 (EIRs).  The Authority provided the Applicant with some information in relation to part (i) of the request, refusing to make available some information within these documents under regulation 11(2) of the EIRs as it considered this to be personal data.  In response to part (ii) of the request it relied on the exception in regulation 10(5)(b) (Justice and Fair Trial) for refusing to make information available. It relied on this same exception in addition to that under regulation 10(5)(e) (Confidentiality of commercial information) for refusing to make information available which fell within scope of part (iv) of the Applicant’s request.  The Authority informed the Applicant that as it did not hold any information which would fulfil part (iii) of the request it was relying on regulation 10(4)(a).
6. On 22 April 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 it was dissatisfied with the outcome of the Authority’s review because it did not consider all of the information it had requested had been provided in response to part (i) of the request.  The Applicant was of the view that the overwhelming public interest lay in disclosure of the information it had requested at parts (ii) and (iv) of its request, and expressed astonishment at the position of the Authority that there was no correspondence whatsoever between the Leader of the Authority and Officers regarding such a high profile fire, which would fulfil part (iii) of its request. 

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 22 May 2024, the Authority was notified in writing that the Applicant had made a valid application.  The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information and the case was allocated to an investigating officer.
9. 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.  These related to the searches it had carried out to identify information falling within the scope of the request, and its reasons for relying on the exceptions in the EIRs for refusing to make information available, including its consideration of the application of the public interest test (where applicable).
10. During the course of the investigation, the Authority informed the Commissioner that it was relying on regulations 10(5)(d) (Confidentiality of proceedings) and (f) (Third party interests) of the EIRs to refuse to make some information available which fell within the scope of part (iii) the Applicant’s request.  In particular, information in documents 34, 35 and 36 under regulation 10(5)(d) and in document 32 under regulation 10(5)(f).
11. The Applicant was provided with the opportunity to provide its comments on these and the other exceptions being relied upon by the Authority.  The Applicant confirmed during the investigation that it was not challenging the Authority’s reliance on regulation 11(2) of the EIRs.  As a consequence the application of this exception will not be considered in this Decision Notice.
12. At different times during the investigation the Authority disclosed some of the information it had previously refused to make available to the Applicant: 

• On 14 November 2024 it made information in documents 40 and 42 available in full.

• On 23 May 2025 it provided information in documents 7A, 10, 23, 25 and 27 in full, documents 8, 9 and 11 with some third party personal data redacted and document 7 with some third party personal data redacted as well as some information under regulation 10(5)(e).

• On 20 June 2025 it made available some additional information in document 31 previously withheld as personal data.     

Commissioner’s analysis and findings

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

Background

14. The request concerned information relating to the Ayr Station Hotel which has been closed permanently since 2013 and was placed on the Buildings at Risk Register for Scotland in 2014.  In the intervening years the building was wrapped in protective scaffolding and measures were taken to encapsulate the building from the public as there were concerns about it being in a perilous condition.  A fire occurred at the building in May 2023, and then on 25 September 2023 there was another fire.  Following this second fire, train services through the station were suspended and remained so until 17 June 2024. 

Handling in terms of the EIRs

15. The Authority processed and responded to the Applicant’s requirement for review in accordance with the EIRs, having concluded that the information was environmental information as defined in regulation 2(1) of the EIRs.
16. When information falls within the scope of the definition of “environmental information” in regulation 2(1) of the EIRs, a person has the 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.
17. The Applicant has not disputed the Authority’s decision to handle its request under the EIRs.
18. 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).
19. The Commissioner considers that the information falls within scope of  paragraphs (a) (elements of the environment), (c) (measures and activities) and (f) (Human health and built structures) of regulation 2(1), as the request relates to a built structure (Ayr Station Hotel), the safety of that structure (and any related structural surveys carried out), and communication in relation to that structure and decisions made about it. Information the authority is refusing to make available.

20. When asked by the Commissioner, the Authority initially identified 69 documents, some of which were attachments to some of the other documents falling within the scope of the Applicant’s request. 

    1. Request part (i) - the Authority already identified three documents that fell within the scope of this part the request which were provided at the time of the review response (with some information redacted under regulation 11(2) of the EIRs). 

    2. Request part (ii) - in its submissions to the Commissioner the Authority stated that it now considered several of the documents provided to fall out with the scope of the request as they were not held by it at the time of the request on 19 December 2023. This involved documents 13, 13A, 14, 15, 15A, 16, 17, 18, 19, 19A, 20, 21, 21A, 21B, 21C, 22 and 22A.  It identified documents 4, 4A, 5, 5C and 6-12 (and 12A) as falling within the scope of part (ii) of the request. 

    The Authority noted however that it now considered it reasonable to make some of the information available to the Applicant in full, and other information to be made available subject to the redaction of certain information it considered to be excepted from disclosure. 

    iii. Request part (iii) – during the investigation, after clarification from the Applicant and the completion of further searches, the Authority identified information within documents 31-58 as falling within the scope of this part of the request.  The Authority explained that it was relying on the exceptions in regulations 10(5(d) (Confidentiality of proceedings), 10(5)(f) (Third party interests) and 11(2) (Personal data) for refusing to make some or all of this information available.  However, it commented that information in documents 40 and 42 could be made available to the Applicant in full.  These were subsequently provided. 

    iv. Request part (iv) - the Authority considered documents 24 and 28-30 to fall out with the scope of part (iv) of the request.  It identified documents 23 and 25-27 as falling within the scope of part (iv) of the request. 

21. The Commissioner considered all of the information in the documents provided and agreed with the Authority’s position regarding the information it considered to be out of the scope of the Applicant’s request, apart from document 21A which the Commissioner found to fall within the scope of part (ii) of the request. 

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

22. 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 information that is held by the authority when it receives a request.
23. On receipt of a request for environmental information, therefore, the authority must ascertain what information it holds falling within 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)).
24. Under the EIRs, a Scottish public authority may refuse to make environmental information available if one of the exceptions in regulation 10 apply and, in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception. 

Information covering part (i) of request

25. In part (i) of its request, the Applicant asked for copies of all structural surveys/condition reports, held or commissioned by the Authority pertaining to the Ayr Station Hotel since the fire on 25 September 2023.
26. The Applicant stated in its submissions to the Commissioner that its primary concern remained the structural surveys/ condition reports, held or commissioned by the Authority, in relation to Ayr Station Hotel, and the correspondence/instructions between officers/contractors/the Authority.  It highlighted in its application to the Commissioner that the information provided to it in response to part (i) of its request was simply a scaffolding resurvey and a short summary on the listed building’s condition base on visual observation of the site.  It stated that no structural surveys or condition reports had been supplied and it wished confirmation that these reports did not exist or it requested copies of these if they did exist.
27. The Applicant’s view was that it would have expected an options appraisal and surveys by qualified professionals to support the decision to demolish a listed building.  It stated that it could see no justification for withholding structural surveys.
28. The Authority identified and provided the Applicant with information in three documents falling within the scope of part (i) of the request.   It withheld some information in line with regulation 11(2) as it considered it to be third party personal data.  As mentioned above, this has not been challenged by the Applicant.
29. In its submissions, the Authority described and provided evidence of the searches that had been carried out in order to determine what recorded information it held falling within the scope of the request.  It explained that this included searching email accounts of particular staff members as well as generic accounts, One Drives, shared drives and document management systems.
30. It noted that the structural report information provided to the Applicant are the reports that it held.  The Authority explained that between the date of the fire on 25 September 2023 and the date of the request of 19 December 2023, no further specific structural or condition reports were requested/instructed or provided to it.
31. Having considered the submissions and explanations from the Authority, the Commissioner accepts that it took adequate and proportionate steps to establish what recorded information it held which fell within the scope of the Applicant’s request.  He is satisfied that the members of staff involved in carrying out the searches would have been best placed to know what recorded information was likely to be held, and where.  He is therefore satisfied, on the balance of probabilities, that the Authority does not hold (and did not on receipt of the request) hold any further relevant recorded information to that made available in response to the Applicant’s requirement for review.
32. The Commissioner is satisfied that the Authority does not (and did not at the time of the request) hold any further recorded information falling within scope of part (i) of the request.  While the Applicant expected further information to be held by the Authority, the Commissioner is satisfied that this was not the case.
33. In all of the circumstances, therefore, the Commissioner is satisfied that, on the balance of probabilities, the Authority holds no further recorded information falling within the scope of part (i) of the Applicant’s request.  As such, he finds that, in this respect, the Authority complied with regulation 5(1) of the EIRs in responding to the request. 

Regulation 10(4)(a) – Information not held

34. In part (iii) of its request, the Applicant asked for copies of all correspondence (email/letter/text) between the Authority and Transport Scotland, Network Rail and Scotrail relating to the Ayr Station Hotel since 1 January 2022.
35. The Authority informed the Applicant that as it held no correspondence between the Leader of the Council and Officers in relation to the Ayr Station Hotel since the fire on 25 September 2023 it was relying on regulation 10(4)(a).
36. Regulation 10(4)(a) of the EIRs provides that a Scottish public authority may refuse to make environmental information available to the extent that it does not hold that information when an applicant’s request is received.
37. The standard of proof to determine whether a Scottish public authority holds the 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.
38. The Commissioner also considers, where appropriate, any reasons offered by the authority to explain why It does not hold the information.  While it may be relevant as part of this exercise to explore expectations about the 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) actually held by the authority.  
39. In its review response to the Applicant, the Authority determined that it held no recorded information falling within the scope of part (iii) of the request.
40. The Applicant expressed its astonishment that there was no correspondence whatsoever between the lead of the Authority and all officers regarding such a high profile fire and wished the Authority to reassess its response.
41. In its submissions the Authority explained that it had interpreted this part of the request to be looking for correspondence between the Council Leader and Building Standards Officers.  However, during the course of the investigation, clarification was sought and obtained from the Applicant on its view of the scope of this part of the request. The Applicant considered “all officers” to include the Authority’s management team, all its staff and elected members.
42. As a result, the Authority carried out further searches which led to the identification of information in documents 31 – 58 that fell within the scope of part (iii) of the Applicant’s request.  As mentioned earlier on information in documents 40 and 42 were provided in full to the Applicant on 14 November 2024.
43. The Commissioner has considered the wording of part (iii) of the request and the phrase “all officers” used by the Applicant.  The assumption by the Authority that this only included Building Standards Officers was, in the Commissioner’s view, a narrow interpretation, even given the subject matter under discussion.  It would have been reasonable and straightforward for the Authority to ask the Applicant for clarification of this point at an earlier stage in the process and indeed in its submissions to the Commissioner the Authority apologised for not doing so.
44. It is a fact that the recorded information falling within part (iii) of the Applicant’s request, subsequently identified, was held at the time of the request and review. In the circumstances, the Commissioner must find that the Authority was not entitled to provide the Applicant with a response in terms of regulation 10(4)(a) of the EIRs in respect of part (iii) of its request.
45. The Commissioner noted that within several of these documents the Authority had highlighted some information it refused to make available as it considered it to be third-party personal data in line with the exception in regulation 11(2), but that no other exceptions had been relied upon to refuse to make available the remainder of the information in these documents.  However, the Applicant had not been provided with redacted versions of these documents.  This applied to documents 31, 33, 37-39, 41 and 43-58.
46. As mentioned before, the Applicant has not challenged the Authority’s reliance on regulation 11(2) to withhold third party personal data.  However, the remaining information within these documents has been deemed to fall within the scope of the request and no exception has been relied upon by the Authority to withhold it from the Applicant.
47. As such, the Commissioner must find that the Authority failed to comply with regulation 5(1) of the EIRs, with respect to this information, as it failed to provide environmental information falling within the scope of the request.
48. The Authority should provide the Applicant with the information within documents 31, 33, 37-39, 41 and 43-58 that is not subject to any exceptions.
49. The Commissioner understands from the reading the Authority’s submissions that it is, however, relying on the exception in regulation 10(5)(d) for withholding some information it found to fall within scope of the request, as well as regulation 10(5)(f) for some other in scope information.  As a consequence, the Commissioner will go on to consider the application of these exceptions to the relevant information in what follows.

Regulation 10(5)(b) – Prejudice to the course of justice, the ability of a person to receive a fair trial or the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature

50. Regulation 10(5)(b) of the EIRs provides that a Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the course of justice, the ability of a person to receive a fair trial or the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature.
51. As with all of the exceptions under regulation 10 of the EIRs, a Scottish public authority applying this exception must interpret it in a restrictive way and apply a presumption in favour of disclosure (regulation 10(2)).  Even where the exception applies, the information must be made available unless, in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception (regulation 10(1)(b)).
52. There is no definition of “substantial prejudice” in the EIRs.  However, the standard to be met in applying the test is high.  The word “substantial” is important here: the harm caused or likely to be caused, by disclosure must be of real and demonstrable significance.  The risk of harm must be real or very likely, not simply a remote or hypothetical possibility.
53. In its review response the Authority informed the Applicant that all of the information falling within scope of part (ii) of the request was being withheld under regulation 10(5)(b) of the EIRs.
54. During the investigation, the Authority provided the Applicant with information in documents 8, 9 and 11 (with some information redacted in line with regulation 11(2)) which it had identified as falling within part (ii) of the request.   It also made all information available in documents 7A and 10 for which no exception had been relied upon.
55. The Commissioner must therefore find that the Authority wrongly relied on regulation 10(5)(b) to withhold this information from the Applicant and in doing so failed to comply with regulation 5(1) of the EIRs.
56. The Authority continued to rely on regulation 10(5)(b) to withhold information in documents 4, 4A, 5, 5C, 6, 12, 12A and 21A in full which it considered fell within the scope of part (ii) of the Applicant’s request.
57. The Authority also made available, to the Applicant, some of the information that had previously been withheld in document 7.  This was made available subject to the redaction of information it considered to be third party personal data (in line with regulation 11(2)) and information it deemed to be exempt in line with regulation 10(5)(e). The application of the exception in regulation 10(5)(e) will be considered later in this Decision Notice.

The Applicant’s submissions – regulation 10(5)(b)

58. The Applicant did not provide any specific arguments in relation to this exception but did comment that this case involved the demolition of a listed building and that the decision making process should be released.   It noted that large sums of public money had been spent during demolition and that all of the bodies involved were publicly funded.

The Authority’s submissions – regulation 10(5)(b)

59. The Authority provided the Commissioner with some background information on the Station Hotel, Ayr.  It advised that in March 2018 it had served the owner with a Dangerous Buildings Notice under section 29(6) and 30 of the Building (Scotland) Act 2003[2].  It did this in its capacity as the designated Statutory Authority under section 29(2) of the 2003 Act.  The Authority advised it had incurred significant expense in carrying out work to safeguard the public and prevent access to the dangerous building before the fire in September 2023.  In its capacity as the Building Standards Authority it carried out immediate safety works under its statutory powers.
60. It highlighted that it had been involved in court action for the recovery of monies from the owner of the Ayr Station Hotel with two Court Decrees to date being successfully awarded by the Court of Session.
61. The Authority submitted that whilst carrying out this statutory function it had outlaid significant sums of money to ensure it met its obligations.  It stated its intention to enter court action to pursue further sums outlaid in maintaining the safety of the public.   
62. In its submissions to the Commissioner, the Authority noted that the documents being withheld under this regulation were being considered as potential productions in such future court actions.  Its view was that until such time that a decision as to what specifically was required to support these court proceedings, disclosure into the public domain would be likely to prejudice substantially its ability to take forward these additional court proceedings, i.e. it would substantially prejudice the course of justice as stated in regulation 10(5)(b)(i) of the EIRs.
63. The Authority acknowledged the requirement to demonstrate that there is a real possibility that disclosure of information could result in substantial prejudice, in this case, in its view to ongoing court proceedings between the Authority and the owner of the Station Hotel to recover funds.  In its view the evidence of previous court action taken by it and its stated intention to seek further decrees for payment demonstrated that disclosure of this information into the public domain, would at this time significantly prejudice ongoing court proceedings, even although it could not at this stage definitively establish which items of information would form court productions.
64. The Authority confirmed in its submissions to the Commissioner that a decision on further legal action had still to be made. 

The Commissioner’s view on regulation 10(5)(b)

65. In determining whether the withheld information would fall within the scope of this exception, the Commissioner has been mindful of the explanation given in The Aarhus Convention: An Implementation Guide[3], where the principles behind the Convention provision on which the exemption is based are set out in the following way (page number 87):

    "…The course of justice refers to active proceedings within the courts.  The term 'in the course of' implies that an active judicial procedure capable of being prejudiced must be under way. This exception does not apply to material simply because at one time it was part of a court case.  Public authorities can also refuse to release information if it would adversely affect the ability of a person to receive a fair trial.  This provision should be interpreted in the context of the law pertaining to the rights of the accused..."

66. The Authority has been clear in its submission that in relying on this exception, it is arguing that disclosure of the information would substantially prejudice the course of justice.  As discussed above, this requires there to be active court proceedings that are capable of being prejudiced.  In this case, it is apparent that at the time of the response to the requirement for review, a decision on whether to go down this route had not been decided.  The Authority mentioned its previous court actions as evidence that it has pursued this avenue in regard to this particular property and property owner in the past.  However, this does not alter the fact that, now and at the time of the requirement for review, there were no active proceedings either lodged, in preparation or ongoing, and would not appear from the Authority’s submissions to be in any way imminent.
67. Given these circumstances, the Commissioner does not consider the release of the information in response to the Applicant’s request, would have prejudiced, or would have been likely to prejudice substantially the course of justice for the purposes of regulation 10(5)(b).  The possibility that proceedings may be taken at an undetermined time in the future is not sufficient to sustain the exception.
68. Having found that the exception in regulation 10(5)(b) did not apply in the circumstances of this case, the Commissioner is not required to go on to consider the application of the public interest test in regulation 10(1) in relation to the withheld information.
69. The Commissioner therefore requires the Authority to disclose to the Applicant the information he has found to have been wrongly withheld under regulation 10(5)(b) (subject to the redaction of personal data) in the documents noted in paragraph 55 above. 

Regulation 10(5)(d) – confidentiality of proceedings 

70. As noted above, the Authority relied on the exception in regulation 10(5)(d) for refusing to make available some information in documents 34, 35 and 36 which fell within scope of part (iii) of its request.
71. Regulation 10(5)(d) provides that a Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the confidentiality of the proceedings of any public authority where such confidence is provided for by law.
72. As with all exceptions in regulation 10 of the EIRs, it is subject to the public interest test in regulation 10(1)(b), and in line with regulation 10(1)(a), must be interpreted in a restrictive way with a presumption in favour of disclosure.
73. The Aarhus Convention: An Implementation Guide notes (at document page 86) that the Convention does not define “proceedings of public authorities”.  It suggests that one interpretation is that these may be proceedings concerning the internal operations of a public authority rather than substantive proceedings conducted by the public authority in its area of competence and goes on to note that national law must provide a basis for the confidentiality.
74. The Commissioner’s guidance on the EIRs[4] notes that “Proceedings” is not defined in the EIRs but will include a range of investigative, regulatory and administrative/governance processes and other activities carried out according to a statute.
75. The Applicant made no specific comments with regard to the Authority’s reliance on this exception.
76. The information in the documents the Authority is refusing to make available in line with this exception comprises communications between members of the public, the Leader of the Council, Council Officers, and members of the Scottish Parliament, for the purpose of democratic engagement between MSPs and Councillors with their constituents about the Ayr Station Hotel.
77. The Authority submitted that its Councillors, including the Council leader, must adhere to the statutory Code of Conduct for Councillors[5] set out for elected members.  It explained that this set out the procedures and processes that elected Councillors must follow in their role as an elected official and that this included processing information in a confidential manner.  It noted that the Councillors’ Code of Conduct was required by law in terms of the Ethical Standard in Public Life etc. (Scotland) Act 2000[6].  It considered that the information in documents 34, 35 and 36 was confidential under the aforementioned statutory requirements and that disclosure would be in breach of this.
78. Additionally, it noted that in terms of section 5 of the Ethical Standard in Public Life etc. (Scotland) Act 2000, a Council has a responsibility to “promote the observance by its Councillors of high standards of conduct and assist them to observe the Code of Conduct”.  The Authority’s view was that a failure by a local authority to support this statutory requirement could result in the Standards Commissioner invoking Enforcement Powers that are afforded to it under Part 2 of the Act.
79. The Authority submitted that should Councillors fail to adhere to the statutory Code of Conduct set out by the Standards Commission, or should the Council provide information that it holds when supporting Councillors for this purpose, it would not only prejudice the relationship between an elected official and a constituent, by breaching communication expected to be treated in a confidential manner, but further would substantially prejudice the Councillor in their role as an elected member, for failing to meet the standards required.
80. It highlighted that this confidentiality is further underpinned by data protection laws. It explained that elected members processed personal data under Article 6(1)(e) of the UK GDPR[7]  and specifically the lawful basis of processing relied upon to the extent of carrying out a task in the public interest, under Section 8 of the DPA being “…necessary for activity that supports democratic engagement.”  It referred to the Privacy Notice which is available to members of the public for the Council Leader is available at: Councillor Martin Dowey - South Ayrshire Council (south-ayrshire.gov.uk)[8]
81. The Commissioner notes the section in the Councillors Code of Conduct relating to Confidentiality (paragraphs 3.21-3.23) and that it covers the general expectations regarding confidentiality of information received, together with the types of information this would apply to.  The Commissioner also recognised that the Ethical Standard in Public Life etc. (Scotland) Act 2000 requires the Scottish Ministers to issue a code of conduct for councillors.  This legislation also sets out that there will be a Standards Commission for Scotland and that it is the duty of the Commissioner for Ethical Standards[9] in Public Life in Scotland to investigate breaches of the code and that ultimately that Commissioner can suspend or disqualify a councillor.
82. The Commissioner agrees that an elected members democratic engagement with constituents as part of their role as an elected member would constitute proceedings for the purposes of the exception.
83. The Commissioner notes that the Privacy Notice referred to by the Authority for the Council Leader, and available to members of the public, details how personal information shared with him will be dealt with in order to comply with data protection legislation. This specifies that although the Council Leader may share details of a query or complaint with Council Officers in order to look into the issue, he would not normally share personal details of constituents with anyone else unless he was required to by law or where this is in connection with a criminal investigation. Thereby setting an expectation for constituents as to how their personal data may be handled.
84. He also accepts that the Code of Conduct for Councillors as well as data protection legislation provides for the confidentiality of such communications.
85. The Commissioner agrees that the Code of Conduct for Councillors as well as data protection legislation would create an expectation of privacy in communications between a constituent and an elected member.  It is unlikely that a member of the public would expect their correspondence with any elected member to be placed in the public domain.
86. The Commissioner accepts the harm the Authority has described would be likely to occur from such disclosure both from the point of view of discouraging constituents from engaging with elected members, and also with regard to causing elected members to breach the requirement of their code of conduct to treat such communications confidentially.
87. Having considered the information that is being withheld under this exception as well as the submissions from the Authority, the Commissioner is satisfied that disclosure of this information would, or would be likely to, prejudice substantially the confidentiality of the Authority’s proceedings.
88. Consequently, the Commissioner finds that the Authority was entitled to rely on regulation 10(5)(d) of the EIRs to refuse to provide the information in documents 34, 35 and 36.
89. The Commissioner did note however, that some information within these three documents has not been provided to the Applicant but that the Authority had not relied on any exceptions to refuse to provide it.
90. The Commissioner finds therefore that the Authority must provide the Applicant with the information in documents 34, 35 and 36 for which it is not relied on any exceptions.  By failing to do so, the Authority has failed to comply with regulation 5(1) of the EIRs.

The public interest test – regulation 10(1)(b)

91. Having found that the exception in regulation 10(5)(d) of the EIRs was correctly applied to the information the Authority is relying on this for, the Commissioner is required to go on to consider the application of the public interest test required by regulation 10(1)(b) of the EIRs.  This states that a Scottish public authority may refuse to make environmental information available if in all the circumstances, the public interest in making the information available is outweighed by the public interest in maintaining the exception.
92. The Applicant did not make any particular public interest argument in relation to the information covered by part (iii) of the request not being made available by the Authority.
93. The Authority acknowledged that information held by it is subject to both the Freedom of Information (Scotland) Act 2002 (FOISA) and the EIRs and that consideration must be given to whether release of such information would be in the best interests of the public.
94. The Authority argued that in this case it was not, as the information that was held was supporting a councillor in their role as an elected member and communicating with other third parties such as constituents and MSPs.  It considered that members of the public would expect such communications to be considered as confidential and as such not to enter the public domain through disclosure under the EIRs.  The Authority submitted that the release of these areas of communication would breach anticipated confidentiality resulting in the public and constituents being inhibited from discussing issues they may have in an open and frank manner with their elected official, thus resulting in a loss of faith in their right to enter into confidential democratic engagement.  
95. It considered that without this important feedback and engagement Councillors may lose the ability to be fully informed on matters of concern to the public which assists in supporting the Authority’s decision making. Therefore, in its view, the public interest was best served in ensuring this confidential relationship was maintained and the information remained exempt from disclosure.
96. The Commissioner has already concluded that regulation 10(5)(d) has been correctly engaged and disclosure would or would be likely to cause substantial prejudice.  He must consider whether this likelihood of this harm is outweighed by the public interest in disclosure.
97. He has carefully considered the arguments put forward by the Authority.  The Commissioner recognises the importance of engaging citizens in the democratic process, and the importance of constituents being able to bring concerns to their councillor or MSP. He has already indicated his view that members of the public would not reasonably expect these communications to be shared any more widely than they need to be to resolve the concern raised (as he noted was documented and shared with the public in the Council Leader’s Privacy Notice) and certainly would not expect these to be placed into the public domain as the result of an information request.  
98. The Commissioner is satisfied therefore that it would not be in the public interest to order disclosure of information that may damage the likelihood of members of the public from approaching elected members in this way.
99. As such, the Commissioner finds that, in the circumstances of this case, the balance lies in maintaining the exception.

Regulation 10(5)(e) – confidentiality of commercial or industrial information

100. The Authority relied on the exception in regulation 10(5)(e) of the EIRs for refusing to make available some information falling within scope of parts (ii) and (iv) of the Applicant’s request.
101. Regulation 10(5)(e) provides that a Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest.
102. The Aarhus Convention: An Implementation Guide which offers guidance on the interpretation of the Convention from which the EIRs are derived, notes (at page 87) that the first test for considering this exception is whether national law expressly protects the confidentiality of the withheld information.  Meaning that the law must explicitly protect the type of information in question as commercial or industrial secrets.  Secondly, the confidentiality must protect a “legitimate economic interest”: this term is not defined in the Convention, but its meaning is further considered below.
103. Having taken this guidance into consideration, the Commissioner’s view is that, before regulation 10(5)(e) can be engaged, authorities must consider the following matters:

(i)       Is the information publicly available?

(ii)      Is the information industrial or commercial in nature?

(iii)     Does a legally binding duty of confidence exist in relation to the information – express or implied?

(iv)     Would disclosure of the information cause, or be likely to cause, substantial harm to a legitimate economic interest?

104. The Authority was relying on this exception to refuse to make information available in documents 7, 23, 25, 26 and 27.
105. During the investigation some information from document 7 was made available to the Applicant but the Authority continued to rely on regulation 10(5)(e) to withhold other information in this document.
106. During the investigation the Authority had intended to provide redacted versions of documents 23, 25 and 27 to the Applicant but instead all of the information in these documents was made available.  The Authority informed the Commissioner that it therefore no longer wished to rely on regulation 10(5)(e) in relation to that information.   

Submissions from the Applicant on regulation 10(5)(e)

107. The Applicant considered that the requested information was a matter of public money rather than a commercial issue as the use of this exception suggests. 

Submissions from the Authority on regulation 10(5)(e)

108. The Authority explained that the information it considered exempt from disclosure under this regulation was the financial information that related to the provision of services contracted by it and that these had been contracted through a Commercial Framework on an emergency basis following the fire.
109. The Authority confirmed that (at the time of the review) the financial amounts contained within these documents was not in the public domain.  It stated that the total amount of the contract award would form part of its Contract’s Register at such time as the final sums were known.  It explained that due to the transient nature of the works that were undertaken at the Ayr Station Hotel site the final sum had not been finalised at that time.  The Authority explained that this would be an accumulated sum that would include any further contract award extensions and any further purchase orders.
110. The Authority submitted that the contractors working with it had a very specialised role and were aware that the total amount of the contract award would be placed into the public domain, but there was an expectation that the specific breakdown of financial information would remain exempt from disclosure.  The Authority explained that this was because such disclosure would provide granular detail on the funds allocated to the provision of specific services.  It considered this was likely to have an impact on the contractors’ ability to competitively tender for similar contracts with the Authority, or other Scottish authorities should their competitors be aware of any breakdown of costs for those services.
111. The Authority stated that disclosure of the information would prejudice substantially the commercial interests of the Authority, Network Rail and the contractor and sub-contractor as it may give competitors under the same Framework an unfair advantage as they would be familiar with the charges made for such services, should they tender for similar business in the future.
112. The Authority considered that this was then likely to prejudice it and Network Rail from being able to obtain Best Value under any further contracts for works at the Ayr Station Hotel leading to higher costs for the public purse. 

The Commissioner’s view on regulation 10(5)(e)

113. The Commissioner has considered all of the submissions from both the Applicant and Authority, together with the withheld information.
114. The Commissioner accepts that prior to the disclosure made by the Authority to the Applicant, the information being withheld in documents 23, 25 and 27 was not in the public domain.
115. He accepts that the information the Authority was refusing to provide under this exception was commercial in nature as it related to the cost of works it had contracted from commercial operators.
116. The Authority has made no specific submissions to the Commissioner on whether a legally binding duty of confidence in relation to the withheld information exists.  It has suggested that the contractor and subcontractor involved were aware that the total value of the contract would be publicly available but that they would have no expectation of any further breakdown of costs being placed into the public domain.  This suggests that the Authority considered there to be an implied duty of confidence, however, it has not provided any evidence to the Commissioner to support this position. 
117. The Commissioner has considered the information that the Authority continued to withhold under this exception and the arguments it made as to why disclosure would cause substantial prejudice to it, Network Rail, the contractor and subcontractor.  The Authority has highlighted the damage that would be caused to disclosure of a breakdown of the cost in relation to being able to make and receive competitive, best value tenders for future work.  The Commissioner does not accept that the figures that are being withheld comprise of the level of breakdown suggested by the Authority and as such is not persuaded that the level of harm envisaged by the Authority would result from such disclosure.
118. In document 7, the figure relates to a purchase order but does not have any information about what the purchase order was for, or a breakdown of the work that it entailed. Similar can be said for the sum detailed in document 26, which refers to post-fire safety works.
119. For these reasons, the Commissioner cannot agree with the Authority that disclosure of the information would cause, or be likely to cause, substantial harm to a legitimate economic interest, namely its own, that of Network Rail, the contractor or the subcontractor.
120. He therefore is not satisfied that disclosure of the information would, or would be likely to, cause the substantial prejudice required by regulation 10(5)(e) of the EIRs. Consequently, he cannot accept that the Authority can justify the application of the exception in regulation 10(5)(e) to the withheld information.
121. Given that the Commissioner has found that the exemption in regulation 10(5)(e) was incorrectly applied to the information withheld by the Authority, he is not obliged to, and has not gone on to, consider the application of the public interest test required by regulation 10(1)(b) of the EIRs.
122. The Commissioner finds that, by not making the information available, the Authority failed to comply with regulation 5(1) of the EIRs.  He therefore requires the Authority to make the information being withheld under this exception in documents 7 and 26 available to the Applicant. As with some of the documents discussed earlier in the Decision, the Commissioner did note that other information within document 26 (other than personal data) had not been provided to the Applicant but that the Authority had not relied on any exceptions to refuse to provide it.  As mentioned above, during the investigation, the Authority provided the Applicant with information in document 7 (other than that for which the Authority relied on regulations 10(5)(e) and 11(2) to refuse to make available) for which no exception had been relied upon.
123. The Commissioner finds therefore that the Authority must also provide the Applicant with the remaining information (other than personal data) in document 26 for which it has not relied on any exceptions. By failing to do so, and by earlier wrongly failing to provide the other information in document 7, the Authority has failed to comply with regulation 5(1) of the EIRs
124. Given the Authority’s change in position in respect of the information in documents 23, 25 and 27, the Commissioner also finds that the Authority failed to comply with regulation 5(1) of the EIRs by wrongly withholding the information under regulation 10(5)(e) of the EIRs.  As the Authority has already provided this information to the Applicant he requires no further action in respect of the information contained in these documents. 

Regulation 10(5)(f) – Third party interests 

125. The Authority relied on the exception in regulation 10(5)(f) to refuse to make available information in document 32 which fell within the scope of part (iii) of the Applicant’s request. and was an email attachment provided to the Authority by Network Rail of potential concepts for the future of the site.

126. Regulation 10(5)(f) of the EIRs provides that a Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the interests of the person who provided that information, where that person -

     (i) was not under, and could not have been put under, any legal obligation to supply the information;

     (ii) did not supply it in circumstances such that it could, apart from these Regulations, be made available; and

     (iii) has not consented to its disclosure.

127. This exception can only be applied if all three of the above tests are satisfied.
128. As with all exceptions in regulation 10 of the EIRs, it is subject to the public interest test in regulation 10(1)(b) and, in line with regulation 10(1)(a), must be interpreted in a restrictive way with a presumption in favour of disclosure.
129. In the Commissioner’s guidance on regulation 10(5)(f)[10], he states that a number of factors should be addressed in considering whether this exception applies.  These include:

• Was the information provided by a third party?

• Was the provider, or could the provider be, required by law to provide it?

• Is the information otherwise publicly available?

• Has the provider consented to disclosure?

• Would release of the information cause, or be likely to cause, substantial harm to the interests of the provider?

130. The Applicant made no specific submissions in relation to this exception.
131. The Authority submitted that the withheld information was provided to it by Network Rail and that there was no obligation or requirement in law for it to have been provided.  It confirmed that the information was not publicly available and that there was an expectation that this correspondence would not be released into the public domain. The Authority considered that to do so would substantially prejudice the third party’s (i.e. Network Rail’s) right to engage with the Authority in an open and transparent manner to share concepts and ideas and make informed decisions on the future of the site, which as previously highlighted by the Authority was not in its ownership but that of a private individual.
132. The Commissioner has considered the withheld information as well as the submissions from the Authority.
133. He accepts that that the information contained in document 32 was provided to the Authority by a third party and also that there was no legal obligation for this information to be submitted by it but rather were part of ongoing correspondence.
134. The Authority stated that the information was not in the public domain and the Commissioner is satisfied that this is the case.  The Commissioner can also accept from the accompanying email correspondence that there was no expectation that this would be disseminated more widely.  In the absence of any evidence that the author of the information has consented to its disclosure, the Commissioner can accept that this has not been given.
135. The Authority has explained why it considers disclosure would substantially prejudice the interests of the person who provided the information and argued that to do so would harm the way its partners engage with it in future, particularly with regard to high priority issues such as the Ayr Station Hotel. This was particularly the case where the third party had put forward ideas that were not fully formed and had not been formally appraised or considered either by the Authority or its relevant services.  Having considered these arguments as well as the withheld information, the Commissioner is satisfied that disclosure would or would be likely to cause substantial prejudice.
136. Based on all of the submissions received, together with the content of the withheld information, the Commissioner is persuaded that disclosure of the information would, or would be likely, to prejudice substantially the interests of the author in the ways described by the Authority.  
137. The Commissioner is therefore satisfied that the Authority was entitled to rely on the exception in regulation 10(5)(f) in relation to this information.

The public interest test – regulation 10(1)(b)

138. Having found that the exception in regulation 10(5)(f) of the EIRs was correctly applied to the withheld information, the Commissioner is required to go on to consider the public interest test required by regulation 10(1)(b) of the EIRs.  This states that a Scottish public authority may only withhold information to which an exception applies where, in all the circumstances, the public interest in making the information available is outweighed by the public interest in maintaining the exception.
139. Although the Applicant made no specific public interest argument in relation to the information being withheld in relation to part (iii) of the request, in its Application (when at review it was informed no information was held), it had argued in relation to other parts of the request that it had considered that there was an overwhelming public interest in the disclosure of information given the large sums of public money that have been spent during demolition by publicly funded bodies.  It also considered that there was public interest in ensuring that public money had been appropriately spent through due process and to ensure an important listed building had not been lost through inappropriate interventions by the Authority.
140. The Authority noted that disclosure of the information in document 32 may be of interest to the public but that this must be considered against the impact disclosure would have on the future development of the site and the impact this would have on the community.  It argued that the sharing of initial concepts and discussions allows all parties to communicate openly without inhibition.  It believed that if parties were inhibited from discussions, the Authority’s public services would be affected, its ability to share ideas and share information in an open and frank manner would be impacted and future developments which may require public funding and bring significant positive benefits to the community may be negatively impacted as decisions would be taken without being able to weigh-up all the idea s and concepts available.
141. It considered therefore that the public interest was best served by maintaining the exception.
142. The Commissioner has already concluded that disclosure of the information would be likely to cause substantial harm to the third party.
143. The Commissioner recognises that there is significant public interest in transparency and public scrutiny in relation to public authorities and how they make decisions.
144. In this case the Commissioner acknowledges that there is public interest in any plans that the Authority and other parties may have for the area around the station, including the site of the Station Hotel.  The Commissioner was able to locate a media article[11] from February 2024 (post the September 2023 fire) that outlined possible plans for the area around Ayr station.  The Commissioner accepts that there is a need for parties to be able to have a space in which to share and explore concepts and ideas, many of which may never go any further than that, and also that disclosure could realistically inhibit such exchanges.  He can also see why such an open platform would be in the public interest. It cannot be in the public interest to stifle thinking that may be innovative or different from what has gone before or all that will be delivered is what has always been.
145. On balance, and having applied a presumption in favour of disclosure, the Commissioner has concluded that the public interest in maintaining the exception in regulation 10(5)(f) of the EIRs outweighs the public interest in making the information available.  Therefore, he finds that the Authority was entitled to withhold the information under regulation 10(5)(f) of the EIRs.

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 by relying on regulations 10(5)(d) and 10(5)(f) to withhold some information falling within the scope of the Applicant’s request the Authority complied with the EIRs.

However, by relying on regulations 10((5)(b) and 10(5)(e) to withhold some information, withholding information to which no exception had been applied and wrongly providing a response in terms of regulation 10(4)(a) in relation to information that was held at the time of the request the Authority failed to comply with the EIRs.

The Commissioner therefore requires the Authority to provide the Applicant with:

• Information in documents 26, 31, 33 - 36, 37-39, 41 and 43-58 to which no exception has been applied

• Information in documents 4, 4A, 5, 5C, 6, 12, 12A and 21A to which regulation 10(5)(b) was wrongly relied upon

• Information in documents 7 and 26 to which regulation 10(5(e) was wrongly relied upon

by 19 December 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.

Enforcement 

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply. The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

David Hamilton

Scottish Information Commissioner

04 November 2025