Decision 273/2025:  Status of Thurso Community Council 

Authority: Highland Council 
Case Ref: 202501007
 

Summary

The Applicant asked the Authority for information relating to the decision taken to allow Thurso Community Council to pass into abeyance rather than be dissolved following the resignation of several Councillors.  The Authority informed the Applicant that it did not hold the information requested and explained why.  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 10 April 2025, the Applicant made a request for information to the Authority.  He asked for “copies of all information related to the decision taken earlier this year to allow Thurso Community Council to pass into abeyance rather than be dissolved following the resignation of 11 standing Community Councillors from Thurso Community Council.”  He also provided the following (non-exhaustive) examples of information/documentation requested:

   1) “Correspondence held by [the Authority] relating to the Councillor resignations, including copies of written letters, emails, (internal and external) and any other related documents used/relating to the decision taken.

   2) Details of departments and all [Authority] officers responsible for or involved in reaching the decision.

   3) Details of any meetings held with regard to the making of the decision and any minutes, transcripts, emails or other documentation related to any and all meetings held where the decision was discussed.

   4) Details and copies of documentation relating to any legal advice sought which facilitated the making of the decision.”

2. The Authority responded on 8 May 2025.  It explained that, while it had the power to dissolve Thurso Community Council, it at no point had any discussions (verbal or written) regarding whether it should dissolve Thurso Community Council.  It therefore informed the Applicant that it held no information relevant to his request.
3. On 12 May 2025, the Applicant wrote to the Authority requesting a review of its decision. He stated that he was dissatisfied with the decision because he did not find the Authority’s response that it had no discussions regarding whether it should dissolve Thurso Community Council credible.  He referred to paragraph 17.3 of the Scheme of Establishment[1], which he said made clear that that it was within the gift of the Authority to dissolve a Community Council where the number of Community Councillors fell below half the maximum permitted membership.
4. The Authority notified the Applicant of the outcome of its review on 27 May 2025, which upheld its original response.  It acknowledged that it had the power to dissolve Thurso Community Council but said that it did not consider using this power – meaning it held no information relevant to the Applicant’s request.  
5. On 27 June 2025, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  He stated that he was dissatisfied with the outcome of the Authority’s review for the reasons set out in his requirement for review.

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 5 August 2025, the Authority was notified in writing that the Applicant had made a valid application.  The case was subsequently 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.  These related to how it established that it did not hold the information requested.
9. While the Applicant’s original request included correspondence relating to Councillor’s resignations as information that he was seeking, his requirement for review was limited (as was his application) to expressing dissatisfaction with the Authority’s position that it had no discussions regarding whether it should dissolve Thurso Community Council credible and therefore held no information relevant to his request.  
10. The Commissioner’s decision notice in this case will therefore only consider whether the Authority was entitled to inform the Applicant that it held no information relevant to his request to the extent that it related to discussions regarding whether it should dissolve Thurso Community Council.  (The Authority informed the Commissioner that the Applicant had received redacted versions of the Councillor resignation emails and statements in response to further FOI requests.)

Commissioner’s analysis and findings

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

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

12. 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.
13. 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.
14. 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.
15. 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

16. As stated above, the Applicant did not consider it credible that the Authority had no discussions or that no decisions were made as the Scheme of Establishment clearly stated within the gift of the Authority to dissolve a Community Council where the number of Community Councillors fell below half the maximum permitted membership.  He considered that this provision meant that discussions or a decision would be required.
17. During the investigation, the Applicant said that, as the Scheme of Establishment stated that the Authority “may” dissolve a Community Council if it falls below half of the permitted membership, he still believed that the Authority had actively taken a decision at some point on the status of Thurso Community Council.

The Authority’s submissions

18. The Authority submitted that the Applicant’s request focused on what appeared to be his belief that the Authority, upon receiving the resignations of the Councillors, had to make a decision regarding the status of Thurso Community Council. 

19. The Authority referred to paragraph 6.2.6 of the Scheme of Establishment referred to by the Applicant, which provided, in relation to vacancies arising on a Community Council between elections, that:

    “…should the vacancy or vacancies result in the number of elected Community Councillors falling below HALF of the maximum permitted membership:

• then the Community Council shall stop operating immediately until an interim election is called.  The exception to this is where, with existing co-opted members, the Community Council can still fulfil quorum requirements.  In these circumstances the Community Council can continue to operate until the next interim election.”

20. The Authority considered that the above paragraph confirmed that there was no decision to be made by the Authority regarding the status of Thurso Community Council – once the membership fell below half its maximum permitted membership, Thurso Community Council had to stop operating.  It submitted that this was an “automatic consequence” of the number of vacancies and did not require a decision, meaning no discussions took place, no advice was sought, no correspondence was entered into, and no documents were received or created.
21. In determining whether it held any information falling within the scope of the Applicant’s request, the Authority explained that it had consulted with relevant members of its Community Support and Ward Management Team as they were responsible for providing advice and guidance to Community Councils.  It said that these staff members had confirmed that the Authority had not taken any decision on the status of Thurso Community Council and that, as a result, no relevant information was held.
22. The Authority noted that it had now provided the Applicant with all correspondence regarding Thurso Community Council in response to further FOI requests of his, which it considered confirmed that it did not make any decision on the status of Thurso Community Council.

The Commissioner's view

23. The Commissioner has taken account of all the relevant submissions provided by both the Applicant and the Authority.
24. It appears that the Applicant believes that the Authority took an active decision to place Thurso Community Council into “abeyance” following the resignations of eleven of its Councillors and that the Authority must, therefore, hold information relevant to his request (which sought information related to that decision).
25. However, the Commissioner accepts the Authority’s position that it did not take any such decision and that Thurso Community Council instead ceased operating or fell into abeyance as an automatic consequence of the number of vacancies following the above resignations.
26. The Commissioner has no locus to comment on the Authority’s actions in relation to the status of Thurso Community Council or the Scheme of Establishment: his remit is limited to consideration of whether the Authority actually holds the requested information and whether it has complied with Part 1 of FOISA in responding to the Applicant’s request.
27. Having considered all relevant submissions and the terms of the Applicant’s request, the Commissioner is satisfied that the Authority took adequate, proportionate steps in the circumstances to establish whether it held any information that fell within the scope of the request.  In the circumstances, he is satisfied, on balance, that it does not (and did not, on receipt of the request) hold the information requested by the Applicant because it did not take a decision to place Thurso Community Council into abeyance.
28. 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 is not a matter for the Commissioner to decide.  As stated above, his remit is limited to considering whether the Authority complied with Part 1 of FOISA in responding to the Applicant’s request: he has no locus to comment on the Authority’s actions in relation to Thurso Community Council or the Scheme of Establishment.
29. The Commissioner therefore finds that the Authority was correct to inform the Applicant, in terms of section 17(1) of FOISA, that it did not hold the information requested.

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.

Cal Richardson 

Deputy Head of Enforcement 

10 November 2025