Decision Notice 271/2025

Decision 271/2025:  Road bonds associated with the Countesswells development

Authority:  Aberdeen City Council
Case Ref:  202500473
 

Summary

The Applicant asked the Authority for copies of road bonds associated with a specified development.  The Authority withheld the information because it considered it to be commercially confidential.

The Commissioner investigated and found that the Authority had breached the EIRs in responding to the request as it was not entitled to withhold information under the exception relating to commercial confidentiality.  The Commissioner required the Authority to disclose the withheld information falling within scope of the request.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 39(2) (Health, safety and environment); 47(1) and (2) (Application for decision by Commissioner).

The Environmental Information (Scotland) Regulations 2004 (the EIRs) regulations 2(1) (definition of “the Act”, “applicant” and “the Commissioner”) (Interpretation); 5(1) (Duty to make environmental information available on request); 10 (1) and (5)(e) (Exceptions from duty to make environmental information available); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).

Background

1. On 21 January 2025, the Applicant made a request for information to the Authority.  He asked for a paper or electronic copy in full, of each road bond associated with the Countesswells housing development approved by the Authority.
2. The Authority responded on 17 February 2025.  The Authority withheld the information under regulation 10(5)(e) of the EIRs.  It argued that disclosure of the information would prejudice the commercial interests of the Authority and the developer (or future developer) of the Countesswells site.
3. On 18 February 2025, the Applicant wrote to the Authority requesting a review of its decision. The Applicant disagreed with the Authority’s decision to classify the requested information as environmental information, and he did not consider there to be any justification for withholding the information.
4. The Authority notified the Applicant of the outcome of its review on 14 March 2025. It upheld its initial response in full.
5. On 27 March 2025, 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 did not agree that the exception applied, and he argued that the information should be disclosed.

Investigation

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
7. On 9 April 2025, 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.
8. 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.  In particular, the Authority was asked to explain why it considered the requested information to be environmental information, why it was withholding the information under the exception in regulation 10(5)(e) of the EIRs, and how it had assessed the public interest test.

Commissioner’s analysis and findings

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

FOISA or the EIRs

10. "Environmental information" is defined in regulation 2(1) of the EIRs.  Where information falls within the scope of this definition, a person has a right to access the information under the EIRs, subject to qualifications and exceptions in the EIRs.
11. The request sought information regarding the road bonds that were associated with Countesswells housing development site.  The Authority handled the Applicant’s request under the EIRs and submitted that the information sought was environmental.  It withheld the information under section 39(2) of FOISA (Health, safety and environment).
12. The relationship between FOISA and the EIRs was considered at length in Decision 218/2007[1].  Broadly, in the light of that decision, the Commissioner's general position is as follows:

    1. The definition of what constitutes environmental information should not be viewed narrowly.

    2. While FOISA does apply to environmental information, as it does to all recorded information, any request for environmental information must be handled under the EIRs. 

    3. In responding to a request for environmental information under FOISA, an authority may claim the exemption in section 39(2).

    4. If the authority does not choose to claim the section 39(2) exemption, it must also respond to the request fully under FOISA: by providing the information; withholding it under another exemption in Part 2; or claiming that it is not obliged to comply with the request by virtue of another provision in Part 1 (or a combination of these).

    5. Where the Commissioner considers a request for environmental information has not been handled under the EIRs, he is entitled (and indeed obliged) to consider how it should have been handled under that regime.

13. Paragraph 6 of the Commissioner’s briefing entitled “What is environmental information?[2]” states: “No types of information are excluded from the potential ambit of Environmental information.  Environmental information may be found in or extend beyond what is not specifically an environmental topic.  Court cases have confirmed that environmental information, and the scope of the Directive, should be interpreted broadly.”

The Authority’s comments

14. The subject of the Applicant’s request related to road bonds.  The Authority explained that road bonds are guarantees which are used by local authorities to complete a road properly if a property developer's work is not done to the required standard and timescale, as stipulated in the conditions laid down in the Road Construction consent issued to the developer as part of the planning process.  They are a security that the road is built and completed to standard.
15. The Authority submitted that, given the above, paragraphs (a) and (c) of regulation 2 of the EIRs applied, specifically the parts highlighted;

    1. the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

       1. measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements.

16. The Authority explained, in its initial response to the request, that it considered the information requested was environmental information, and therefore it was exempt from release through FOISA.  Consequently, the Authority applied section 39(2) of FOISA and concluded that the EIRS was the more appropriate regime for dealing with the request.

The Applicant’s comments

17. The Applicant disputed the Authority’s decision to deal with the request under the EIRs. It was his view that road bonds were financial guarantees, not environmental measures.  He submitted that bonds themselves do not affect the environmental as they are contractual instruments designed to ensure road completion and he argued that while road construction may be an environmental matter, the financial securities underpinning such works are not.
18. The Applicant acknowledged the previous case law and decisions issued by the Scottish Information Commissioner, but he argued that Decision 051/2023[3] focused on the nature of the authority rather than the subject of the request.  He suggested that financial instruments do not fall under the scope of the EIRs unless they directly concern environmental measures.
19. The Applicant submitted that the bonds should be disclosed under FOISA, as they were not exempt under environmental regulations.

The Commissioner’s view

20. The Commissioner has considered the terms of the request and the information identified by the Authority as falling within those terms.  He notes that the Scottish Collaboration of Transportation Specialist (SCOTS) guide for the Road Construction Consent and Road Bond process[4] (the SCOTS guide) states that a road bond “is a mechanism which guarantees, one way or another, that the road in its widest term, will get built and completed to the necessary standard and specification” and that it “effectively makes a sum of money available to the authority, if it is needed, to construct or complete the road.”

    Section 151 of the Roads (Scotland) Act 1984[5] defines a road as “any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road’s verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to the road includes a part thereof”.

21. Given these definitions, and taking into account the fact that the Commissioner has previously accepted that information concerning roads is environmental information, the Commissioner accepts that any recorded information falling within the request’s scope will be environmental information as defined in regulation 2(1) of the EIRs.  The Commissioner agrees with the Authority that such information falls within definitions (a) and (c) of "environmental information" contained in regulation 2(1) of the EIRs, in being information on measures such as policies and plans likely to affect the elements of the environment and/or factors likely to affect those elements.

Section 39(2) of FOISA – Environmental Information

22. The exemption in section 39(2) of FOISA provides, in effect, that environmental information (as defined in regulation 2(1) of the EIRs) is exempt from disclosure under FOISA, thereby allowing any such information to be considered solely in terms of the EIRs.
23. In this case, the Commissioner accepts that the Authority was entitled to apply this exemption to any information falling within the scope of the request under FOISA, given his conclusion that it is properly classified as environmental information.
24. As there is statutory right to access environmental information available to the Applicant in this case, the Commissioner accepts, in all the circumstances, that the public interest in maintaining this exemption (and responding to the request under the EIRs) outweighs any public interest in responding to the request under FOISA.  Both regimes are intended to promote access to information and there would appear to be no reason why (in this particular case) disclosure of the information, were it to be held, should be more likely under FOISA than the EIRs.
25. The Commissioner therefore concludes that the Authority was correct to apply section 39(2) of FOISA and consider the Applicant’s information request under the EIRs.
26. The Commissioner will consider the request in what follows solely in terms of the EIRs.

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

27. 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 an applicant.  The obligation relates to information that is held by the authority when it receives a request.
28. On receipt of a request for environmental information, therefore, an authority must ascertain what information it holds falling within scope of the request.  Having done so, regulation 5(1) requires the authority to provide that information to the requester, unless a qualification in regulations 6 to 12 applies (regulation 5(2)(b)).
29. In this case, the Authority relied on the exception in regulation 10(5)(e) of the EIRs in withholding all of the information covered by the Applicant’s request.
30. It is clear from the Applicant’s application and submissions that they are unhappy with the Authority’s reasons for refusing to make the information available.

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

31. Regulation 10(5)(e) 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 confidentiality of commercial or industrial information, where such confidentiality is provided for by law to protect a legitimate economic interest.

32. As with all exceptions under regulation 10, 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 disclosed 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)).
33. The Aarhus Convention: an Implementation Guide[6], which offers guidance on the interpretation of convention from which the EIRs are derived, notes (at page 88) that the first test for considering this exception is whether national law protects the confidentiality of the withheld information. The law must explicitly protect that type of information as commercial or industrial secrets.  Secondly, the confidentiality must protect a “legitimate economic interest”.
34. 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:

    1. Is the information publicly available?

    2. Is the information commercial or industrial in nature?

    3. Does a legally binding duty of confidence exist in relation to the information?

    4. Would disclosure of the information cause, or be likely to cause, substantial harm to a legitimate economic interest?

Is the information publicly available?

35. The Authority submitted that the information requested was not publicly available.
36. The Authority clarified further by stating that road bonds are put in place in exercise of the powers conferred under the Roads (Scotland) Act 1984 and are, therefore, not held on planning registers.
37. The Commissioner is satisfied that the road bonds information is not already in the public domain.

Is the information commercial or industrial in nature?

38. The Authority explained that the request sought a copy of each road bond associated with the Countesswells housing development in Aberdeen; a development being undertaken by a number of developers.
39. The Authority stated that the primary development scheme included arterial and interconnecting roads which allowed access from the A944 and Blacktop public roads (adopted) to the new residential developments and associated roads.  This was under the control of two principal developers who had both gone into administration and these roads were only partially completed.
40. The Authority submitted that the administrators for both of the developers were in negotiations with a prospective developer, who may be interested in taking over the primary scheme of arterial and interconnecting roads along with development land.  As part of this, the Authority noted that this developer had asked for information on the current validity of the Road Construction Consent (RCC) and the road bond value.
41. The Authority explained that section 21 of the Roads (Scotland) Act 1984 required RCC to be given by the Roads Authority (in this case the Authority) to applicants who wished to construct new roads or extensions of existing roads. The Roads Authority has the power to grant the consent with such conditions as it sees fit. The Authority submitted that RCC would need to be applied for by any new developer wishing to take over the development, most likely the remaining parts which would realise a return (residential units) and could be connected to an existing adopted road.
42. Moreover, the Authority explained that normal practice, when granting RCC, is for the Authority to request a security, otherwise known as a road bond, to assure the road is constructed to the required standard for the road to be added to the list of public roads. The granting of such a security is governed by The Security for Private Road Works (Scotland) Regulations 1985 (the Regulations).
43. The Authority explained that, although the Regulations (as amended) allow the transfer of road bonds, section 11 of the Regulations gives the authority the ability to require an additional security to take account of additional costs.  The RCCs granted to the two principal developers (in administration) were issued several years ago.  The Authority explained that since then, construction and bitumen costs had increased significantly with the Roads Authority having increased the road bond required costs for any new bonds.  Given this, the Authority argued that the information requested by the Applicant was commercial.
44. Having considered the withheld information, together with the submissions from the Authority, the Commissioner accepts that the information is commercial in nature.

Does a legally binding duty of confidence exist?

45. The Authority submitted that the road bonds requested related to a development in which the developers had gone into administration.  The Authority acknowledged that there was no legally binding duty of confidence between the administrators and the Authority; however, it argued that disclosure of the information requested would limit the administrators’ ability to maximises the sums due to the creditors.
46. When questioned, the Authority stated that there was no legally binding duty of confidence between the administrator and the Authority, and it later confirmed that it could not determine definitively whether there was any implied duty of confidence.  The Authority argued that this uncertainty arose from ongoing and active circumstances surrounding the sale of the development, including various negotiations and potential changes in ownership that were in progress.
47. The Authority consulted with the administrators for the development and submitted their view that disclosure of the information at this stage could be prejudicial to the ongoing negotiations with the prospective purchaser.  The administrators argued that there was a large degree of commercial sensitivity connected to the proposed sale of the development and, given the very advanced stage of the negotiations, it would be detrimental to those discussions if the requested information was disclosed.
48. The Commissioner notes that the Authority has acknowledged that there is no express obligation of confidentiality.  Furthermore, the Commissioner is not persuaded by any of the Authority’s submissions that there is an implied obligation of confidentiality.
49. The Commissioner notes that there is no clause in The Security for Private Road Works (Scotland) Regulations 1985[7], or in the amending regulations[8], to suggest that road bonds are inherently confidential.  He is aware of no other rule of law which would make it so.
50. The Commissioner acknowledges that the information appears to be commercially sensitive, particularly in the present context (bearing in mind the particular duties of the Administrator), but he cannot accept that these circumstances create an obligation of confidentiality where none existed before.
51. In the absence of any obligation of confidentiality, the Commissioner cannot accept that the Authority was entitled to apply the exception in regulation 10(5)(e) in withholding the requested information.
52. Given that the Commissioner has found that the exemption in regulation 10(5)(e) was incorrectly applied to the information withheld by the Authority, the Commissioner is not obliged to, and has not gone on to, consider the fourth test of the exception, or the public interest test required by regulation 10(1)(b) of the EIRs.
53. The Commissioner finds that, by not making the information available, the Authority failed to comply with regulation 5(1) of the EIRs.  He requires the Authority to disclose the information to the Applicant.

Decision 

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

He finds that the Authority was not entitled to withhold the information requested by the Applicant under regulation 10(5)(e) of the EIRs and, as a consequence, failed to comply with regulation 5(1) of the EIRs.

The Commissioner therefore requires the Authority to disclose the information captured by the request to the Applicant by 22 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.

Euan McCulloch 

Head of Enforcement 

6 November 2025