Decision 274/2025:  Whether request was manifestly unreasonable

Authority: Scottish Forestry
Case Ref: 202500437
 

Summary

The Applicant asked the Authority for information about the Stobo Hope woodland creation scheme after a specified date.  The Authority responded to parts (i) and (ii) of the request but refused to respond to part (iii) because it considered the request was manifestly unreasonable.  The Commissioner investigated and found that while responding to the request was burdensome, the public interest in considering the information for disclosure outweighed the need to protect the Authority’s resources by refusing to respond.

He required the Authority to consider all of the information falling within scope of the request and to issue a revised review outcome.

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 the 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”) and paragraphs (a) and (c) of the definition of “environmental information”) (Interpretation); 5(1) and (2) (Duty to make environmental information available on request); 10(1), (2) and (4)(b) (Exceptions from duty to make environmental information available); 
10(4)(e) (Internal communications); 11(2) (Personal data); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).

Background

1. On 20 January 2025, the Applicant made a request for information to the Authority.  He asked, in relation to the Stobo Hope woodland creation scheme:

   1. Has Scottish Forestry decided to inspect the site for work carried out so far? If not, why not, given that Scottish Forestry is the regulator for forestry? If yes, please provide a detailed inspection report, showing all contractual and UK Forestry Standard breaches. 

   2. Has Scottish Forestry notified RPID of the herbicide spraying that occurred on site in 2023? If not, why not? 

   3. Please provide all correspondence between Scottish Forestry and all third parties (including RPID) as well as internal communication between Scottish Forestry staff, including documents, emails, forms, maps and other items of information since 27 August 2024.

2. The Authority acknowledged the request on 28 January 2025 and on 17 February 2025 (the day it was due to respond) it informed the Applicant that it was taking longer than expected to deal with his request because it needed more time to review its searches and consider its response.
3. On 19 February 2025, the Applicant wrote to the Authority requesting a review of its failure to respond.
4. The Authority notified the Applicant of the outcome of its review on 17 March 2025.  It provided some information in response to requests (i) and (ii).  In response to request (iii), the Authority withheld some information under regulation 6(1)(b) (Form and format of information) of the EIRs.  It explained that some of the correspondence he had requested had already been partially released under the EIRs and it provided the Applicant with a weblink to access this information.  The Authority applied regulation 10(4)(b) (Manifestly unreasonable) of the EIRs to the remaining information captured by request (iii) due to the high number of records captured by the request and the associated burden of collating and presenting the information.
5. On 24 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 stated that he was dissatisfied with the outcome of the Authority’s review because he did not agree that the request was manifestly unreasonable, and he believed the public interest favoured disclosure of the information. 

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 31 March 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.  These related to the matters raised by the Applicant in his application. 

Commissioner’s analysis and findings

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

Handling in terms of the EIRs

10. The Authority handled the request under the EIRs, having concluded that the information requested by the Applicant was environmental information, as defined in regulation 2(1) of the EIRs.
11. Where information falls within the scope of this definition at regulation 2(1) of the EIRs, a person has a right to access it (and the public authority has a corresponding obligation to respond) under the EIRs, subject to the various restrictions and exceptions contained in the EIRs.
12. The information requested by the Applicant concerns the planting of trees in a particular area.
13. The Applicant has not disputed the Authority’s decision to handle the request under the EIRs and the Commissioner is satisfied that the information requested by the Applicant falls within the definition of environmental information set out in regulation 2(1) of the EIRs, in particular, paragraphs (a) and (c) of that definition.

Section 39(2) of FOISA – Environmental information 

14. The exemption in section 39(2) of FOISA provides, in effect, that environmental information (as defined by 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.  In this case, the Commissioner accepts that the Authority was entitled to apply this exemption to the information withheld under FOISA, given his conclusion that it is properly classified as environmental information.
15. As there is a statutory right of access to 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 disclosing the information under FOISA.  Both regimes are intended to promote public access to information and there would appear to be no reason why (in this particular case) disclosure of the information should be more likely under FOISA than under the EIRs.
16. The Commissioner therefore concludes that the Authority was correct to apply section 39(2) of FOISA and to consider the Applicant's information request under the EIRs. 

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

17. 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.
18. On receipt of a request for environmental information, the authority must ascertain what information it holds falling within the 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)).
19. Under the EIRs, a public authority may refuse to make environmental information available if one or more of the exceptions in regulation 10 applies. 

The Authority’s handling of the request and change of position

20. After the Applicant had made his application to the Commissioner the Authority notified the Applicant, on 8 May 2025, of a change in its position.  It stated that as part of responding to the Commissioner’s investigation, it had revisited its review response (of 17 March 2025) and was withdrawing its reliance on regulation 6(1)(b) (Form and format of information) of the EIRs.
21. It explained that the reason for this change in position was that it now considered that not all of the information which fell within scope of request (iii) had been disclosed as part of the previously published response (to a separate information request made by another party) to which it had directed the Applicant when it applied the exception within regulation 6(1)(b) of the EIRs.
22. The Authority therefore disclosed the documents which fell within scope of both requests and stated that these comprised communications between the Authority and third parties on the Stobo Hope scheme between 27 August 2024 and 29 October 2024 (i.e. the time period for which the previously published response overlapped with the Applicant’s request).
23. It withheld some information under regulation 11(2) (Personal data) of the EIRs and one document under 10(4)(e) (Internal communications) of the EIRs.
24. On 14 July 2025 the Authority disclosed the information which had previously been withheld under 10(4)(e) of the EIRs to the Applicant. Given the Authority’s change of position, the Commissioner will not consider the exceptions under regulations 6(1)(b) and 10(4)(e).
25. The Authority’s change of position came after the appeal was made to the Commissioner’s office. The Applicant did not challenge the Authority’s application of the exception under regulation 11(2) (Personal data) of the EIRs and the Commissioner will not consider the exception further.
26. As the Authority withheld information which it later disclosed, the Commissioner must find that it breached regulation 5(1) of the EIRs.

Background summary – Stobo Hope woodland scheme

27. The Stobo Hope woodland scheme is a very large afforestation scheme north of Peebles in the Scottish Borders.
28. The investment fund owner of the scheme is the Forestry Carbon Sequestration Fund and the sequestration fund’s parent company is True North.
29. The Authority originally deemed the proposal could proceed without an Environmental Impact Assessment (EIA) and approved it early in 2024.
30. However, the Stobo Residents Action Group (SRAG) lodged a petition for a judicial review, as a result of which the scheme was stopped to allow the Authority to review whether a full Environmental Impact Assessment (EIA) needed to be carried out.  It was later determined that an EIA was necessary and a £2million grant for the scheme was paused.
31. During the judicial review, details emerged of “blanket herbicide spraying” of glyphosate at the site before the application for the scheme was submitted to the Authority. The Authority stated that it should have been notified of large-scale herbicide spraying prior to the application for the scheme being submitted but a material piece of information was not disclosed by the scheme applicant, and it had not been informed. The Authority subsequently took enforcement action to stop the developer’s work at Stobo, in order for the woodland creation application and new information to be assessed.
32. In December 2024, the Forestry Carbon Sequestration Fund lodged a petition for judicial review of the Authority’s decision to stop the development work at Stobo, claiming that information on its approach to heather treatment was “clearly contained” in documentation submitted to the Authority.  This petition for judicial review was unsuccessful.

Regulation 10(4)(b) of the EIRs – Manifestly unreasonable 

33. Regulation 10(4)(b) of the EIRs provides that a Scottish public authority may refuse to make environmental information available to the extent that the request for information is manifestly unreasonable.  In considering whether the exception applies, the authority must interpret it in a restrictive way and apply a presumption in favour of disclosure.  Even if it finds that the request is manifestly unreasonable, it is still required to make the information available unless, in all the circumstances, the public interest in doing so is outweighed by that in maintaining the exception.
34. The Commissioner's general approach is that the following factors are relevant when considering whether a request is manifestly unreasonable.  These are that the request: 

    1. would impose a significant burden on the public body; 

    2. does not have a serious purpose or value; 

    3. is designed to cause disruption or annoyance to the public authority; 

    4. has the effect of harassing the public authority; or 

    5. would otherwise, in the opinion of a reasonable person, be considered manifestly unreasonable or disproportionate. 

35. This is not an exhaustive list.  Depending on the circumstances, other factors may be relevant, provided the impact on the authority can be supported by evidence.  The Commissioner recognises that each case must be considered on its merits, taking all the circumstances into account.

The Applicant's comments on the exception

36. The Applicant did not agree that the request was manifestly unreasonable and he commented that the Authority had failed to explain how much work was involved in providing the information.
37. He submitted that he had previously received information from the Authority relating to Stobo Hope via three Freedom of Information (FOI) requests covering the entire application process and that this information included consultation documents, environmental impact forms, internal correspondence, ecology reports, archaeology reports, Scottish Borders Council consultations, NatureScot consultations, consultations with the public, contracts, provisional grant costs, numerous maps and many other items.  He argued that this information comprised thousands of pages and hundreds of PDFs, many of which had been redacted to remove personal information.
38. The Applicant stated that in the past the Authority had been fairly reasonable in answering his requests.  Some of these requests had been very lengthy and had required extensions, but the Authority had only very rarely claimed the requests were manifestly unreasonable.
39. Furthermore, the Applicant stated that the information which he had requested was only available by making an FOI request, because the Authority had a long-standing policy of refusing to make the information available on its website, unlike local authorities or national park authorities which had planning portals which allowed the public to view public documents.     
40. The Applicant stated that while the period covered by his request (27 August 2024 to 20 January 2025) was longer than the period covered by an earlier request also relating to Stobo Hope (which was the subject of Decision 132/2025[1]), typically after woodland creation schemes were completed, there was very little information (that is, the Applicant expected that not much information would usually have been generated after the scheme was approved early in 2024).
41. Moreover, the Applicant stated, much of the additional information in relation to Stobo Hope might have been generated as a result of the judicial reviews.  He claimed that these judicial reviews arose as a result of the Authority’s incompetence in approving the woodland creation scheme without an EIA early in 2024, and the incompetence of forestry managers in applying herbicide and the Authority in allegedly not noticing this spraying.
42. The Applicant referred to the Commissioner’s guidance on the exception within regulation 10(4)(b) of the EIRs.  He submitted that none of the points from (i) to (v) at paragraph 34 applied because his request was proportional, in the public interest, helped discourage malpractice and provided people with information that could help to inform future policy to deliver future social and economic benefits, among other reasons.
43. The Applicant argued that it was not possible to narrow down his request to minimise the time and cost involved in responding, partly because there were multiple bodies involved, and it was not practical to specify one or a few areas of interest.  The Applicant argued that members of the public were perhaps unaware how the Authority held data including which areas within the Authority, and which staff, administered certain tasks.
44. The Applicant stated that it was unclear how Authority staff operated, and it was not always certain which third parties were consulted in relation to certain activities.  
    The Applicant explained that this was the reason why his request was wide ranging and stated that the request was not a fishing expedition but was intended to establish how, and if, the Authority would remedy shortcomings in its operation.
45. The Applicant explained that he had a lot of experience in collating information requests from a number of bodies and stated that the response by the Authority on this occasion was unusual.  He argued that the Authority was trying to withhold the information to prevent embarrassing or damaging information from being disclosed and that previous events seemed to support this (e.g. the Applicant stated that the judicial review in September was damaging to the reputation of the Authority, the landowners and the forestry managers).
46. The Applicant stated that the Authority was a large organisation with a net operating expenditure of more than £81m in the financial year until the end of March 2024.
47. The Applicant stated that the Stobo Residents Action Group had halted the forestry project through a judicial review, resulting in a £2million grant payment contract to the Forestry Carbon Sequestration Fund being paused.
48. The Applicant argued that the judicial review had prevented £2m of public money being paid into what, he claimed, was a tax haven for a commercial conifer plantation with an absentee landlord.  The Applicant submitted that it seemed inappropriate that the Authority should refuse to disclose the information on cost grounds, when that cost was a fraction of its annual expenditure and the £2m grant.

The Authority's comments on the exception

49. The Authority provided some background in relation to woodland creation schemes in Scotland and submitted that the regulatory and grant processes which underpinned woodland creation were very well established.  It stated that Scottish Forestry oversaw, on behalf of Scottish Ministers, some 500-600 Forestry Grant Scheme (FGS) applications per year, 800-1000 Felling Permission applications, 100-200 forest plans approvals, and 300-400 EIA screening opinions. 
50. The FGS had been running since 2015 and was one of many Scottish Rural Development Programme (SRDP) Rural Development Schemes. 
51. The Authority stated that the owner of the Stobo woodland creation scheme, the Forestry Carbon Sequestration Fund, was of a similar structure (in terms of being an investor-led scheme) to many other well-documented woodland creation sites.  These other schemes had used similar organisational structures to purchase the land, employ agents and develop successful proposals which had been assessed and audited.  The Authority commented that the Applicant was aware of those other schemes and had made numerous requests for information about them but stated that he had not raised the same points made in relation to this scheme to any of the others.
52. The Authority commented that the FGS offered a range of grants for woodland creation, agroforestry, tree health, woodland improvement, processing and marketing and sustainable management of forests.  
53. The Authority explained that the purpose of the SRDP was to help achieve sustainable economic growth and that the main priorities were enhancing the rural economy, supporting agricultural and forestry businesses, protecting and improving the natural environment, addressing the impact of climate change and supporting rural communities.
54. The Authority provided information about the safeguarding of public funds offered as a grant and it stated that the FGS programme was audited annually, as was the Authority, and its accounts presented to the Scottish Parliament. 
55. The Authority referred to the Commissioner’s guidance on the exception at regulation 10(4)(b)[2] and submitted that, while it recognised that the factors set out in paragraph 34, above, were not a checklist, it considered that factors (i) and (v) were relevant in this appeal.
56. It submitted that the Stobo Woodland Creation Scheme was a very large, landscape-scale scheme in southern Scotland which had been under development for a number of years and, as was common for schemes of that scale and type, it had a lot of associated documentation.
57. The Authority stated that the scheme was also the subject of one judicial review which concluded in September 2024, and decisions made thereafter, and that a second judicial review was sought (in response to the outcome of the first) which was eventually revoked.  The Authority submitted that both judicial reviews had further added to the volume and complexity of the information caught by the request.
58. The Authority submitted that complying with request (iii) would impose a significant burden on it, and that it was therefore manifestly unreasonable or disproportionate.  
59. The Authority argued that the request was part of a pattern of similar requests made to it over several years.  By way of providing further context, the Authority stated that at the point of responding to this appeal, it was handling eight requests and three appeals from the same requester on similar topics.  It submitted that it aimed to provide the information requested wherever possible, but the volume of information caught by this request was sufficient to make the request manifestly unreasonable.  The Authority argued that, given the requester’s history of asking for similar information, it was reasonable to assume that he had an understanding of the volume of information likely to be caught by his requests.
60. The Authority stated that 2242 documents had been identified as potentially falling within scope of the request, and that this did not include attachments to emails.  It explained that the information requested was held across individual email accounts (inbox, sent, archived), personal and corporate Microsoft file explorer folders and eRDM (the corporate Electronic Record and Document Management system).  In this case, the Authority submitted that the bulk of the information was stored in individual email accounts, shared folders or personal storage.  For instance, the Authority’s main Stobo file had 23 principal file explorer folders, some with one or more sub folders.
61. The Authority provided details of how searches were carried out and explained that the case handler liaised with the Conservator (regional manager) of the particular area where the scheme was located who, in turn, consulted individual staff members working on the scheme.  Staff in central or senior positions who were involved with the woodland creation and/or the judicial review handling were also consulted.  The Authority provided details of individual staff members and the numbers of search returns from each.
62. The Authority submitted that once the information which was potentially in scope had been identified, a large number of individuals across various teams would have to review that information for scope.  It stated that for this case, much of the information was technical and specialist in nature or related to the judicial reviews.
63. The Authority argued that staff sifting their search returns for in-scope information would also need to review that information and highlight any potentially sensitive issues such as protected species, commercial confidentiality or any ongoing related issues and identify such sections of the information.  Further review would then be required to decide whether exceptions applied.
64. The Authority submitted that dealing with the request would place a substantial burden on it in terms of both financial resources, and of other statutory work which would be detrimentally impacted by the resources required to deal with this request.
65. The Authority then explained that this other statutory work would include: 

    1. the duty to promote sustainable forest management under the Forestry and Land Management (Scotland) Act 2018; 

    2. the assessment of tree felling applications (under The Forestry (Exemptions) (Scotland) Regulations 2019 and The Felling (Scotland) Regulations 2019);

    3. the regulation of woodland creation applications (including the Stobo application itself); and

    4. the issuing of Statutory Plant Health Notices, which require woodland owners to act to contain or slow down disease outbreaks.

66. The Authority provided a breakdown of the time it stated would be required to consider the request.  It estimated that:

    a) Eight people would take 40 minutes to search (each taking an estimated five minutes (time a = 40 minutes).

    b) One minute would be needed to sift each document and for 2242 documents this would take 2242 minutes, or 37 hours (time b = 37 hours).

    The Authority stated that from (a sample of) 10 documents sifted, two were outwith the scope of the request and, taking this into account, it assumed that 20% of documents were possibly not in scope or were duplicates. 

    Extrapolating out, the Authority calculated that 80% of 2242 would result in 1794 documents falling within scope.  On that basis, it estimated that:

    c) Redaction taking five minutes per document (1794 x 5) would be 8970 minutes, or 150 hours (time c = 150 hours). The Authority argued this was a conservative estimate as this work was not only the physical act of redacting but included some time to consider the information and where exceptions might apply.

67. The Authority, given the above calculations, had therefore estimated the total time needed to consider the request at 187 hours 40 minutes (a + b + c).
68. The Authority also provided details of individual staff members’ hourly rates (which the Commissioner will not reproduce here).  Based on these hourly rates, it calculated the cost of responding to the request at more than £5,000.  However, it argued that even when an hourly rate of £15 was applied (the maximum allowed when applying the upper cost limit under FOISA) the cost of responding to the request based on the calculations above was £2805.  The Authority argued that this was significantly above the upper cost limit in FOISA of £600.

The Commissioner's view on the exception

69. The Commissioner’s briefing on regulation 10(4)(b) of the EIRs[3], states that a request will impose a significant burden on a public authority where complying with it would require a disproportionate amount of time, and the diversion of an unreasonable proportion of its resources, including financial and human, away from other statutory functions.
70. The EIRs do not define the term “manifestly unreasonable”, and neither does the Directive. However, the Aarhus Convention Implementation Guide[4], named after the Convention on which the Directive was based, makes it clear that volume and complexity alone do not make a request “manifestly unreasonable” and, indeed, regulation 7 of the EIRs provides additional time for authorities to respond to voluminous and/or complex requests.
71. There is no cost limit for determining what is deemed to be an excessive cost of compliance under the EIRs, as there is in FOISA. Under FOISA, public authorities do not have to comply with a request if the cost of compliance exceeds £600.  The Commissioner notes that the Authority referred to the cost ceiling in FOISA, when arguing that compliance would be manifestly unreasonable.  Despite the EIRs themselves lacking a cost ceiling, the Commissioner recognises that there may be cases where the time and expense involved in complying with a request for environmental information means that any reasonable person would regard it as excessive.
72. The Commissioner has carefully considered all of the submissions from the Applicant and the Authority.
73. The Commissioner notes that in Decision 132/2025[5], the Authority submitted that the Applicant’s request was manifestly unreasonable because of the burden of considering 1300 search results (with an estimated 75-80% of returns in scope) and that this number is less than that claimed in this appeal.
74. While the Commissioner considers that the Authority could have provided further evidence and details of how it worked out the burden upon it (it did not supply screenshots of the search terms used and the Commissioner questions whether it would take five minutes to redact the average document – the Authority did not provide a worked example to illustrate its argument) he considers, on the balance of probabilities and in all the circumstances of this case that responding to the request would require significant resource and therefore concludes that the exception in regulation 10(4)(b) of the EIRs applies.
75. Notwithstanding the above, the Commissioner would also note that the burden upon the Authority has been compounded by a weak publication scheme as noted by an Environmental Standards Scotland report[6], that is, that the Authority’s own shortcomings in ensuring past information was published have added to the work that it would now have to carry out to consider the request. 

The public interest test - Regulation 10(4)(b) 

76. The exception in regulation 10(4)(b) is subject to the public interest test in regulation 10(1)(b) of the EIRs. 
    This means that, although the Commissioner is satisfied that the Applicant’s request is manifestly unreasonable, he must still require the Authority to respond to that request if the public interest in making the information available outweighs that in maintaining the exception.

The Applicant’s comments on the public interest

77. The Applicant submitted that the woodland creation application at Stobo was still ongoing and he argued that there were factors relating to Stobo Hope in terms of the granting of public money and herbicide spraying about which it was important the public was made aware.
78. The Applicant stated that the wider public would like to know the facts relating events at Stobo and what he claimed were multiple failures by the Authority in relation to (among other things) preventing malpractice, misrepresentation by funds in overseas tax havens, ensuring public funds were not misused and clarifying whether the Foresty Carbon Sequestration Fund would receive further public funds, despite allegations of criminality.
79. The Applicant stated that it appeared to be an offence under The Agriculture, Land Drainage and Irrigation Projects (Environmental Impact Assessment) (Scotland) Regulations 2017[7] for large areas of heather moorland and grassland to be sprayed with herbicide in August 2023, when the land was under agricultural regulations and not forestry regulations. (The Applicant understood that forestry regulations only applied after 6 February 2024, when the contract was signed.)
80. The Applicant argued that forestry managers failed to inform the Authority of this herbicide spraying in their application to the Authority (which he suggested could be a potential offence in terms of misrepresentation) for the Stobo woodland scheme which he claimed resulted in £2 million of public funding being awarded.
81. The Applicant argued that, after the herbicide spraying, the Authority awarded the Forestry Carbon Sequestration Fund two further contracts (in addition to the £2 million for Stobo) worth in the region of nearly £1.6 (according to information provided by the Authority in response to a separate request).  The Applicant stated that, while the Stobo contract was cancelled, the Authority had failed to retrieve the additional £1.6million.
82. The Applicant stated that if the Authority had properly regulated forestry (and the Rural Payments and Inspections Division (RPID) had properly regulated agriculture), including woodland creation schemes, the Authority would have noticed the herbicide damage at a far earlier date, especially (the Applicant argued) as vegetation stayed green into October and the effects of the herbicide spraying in August would have shown within a few weeks.
83. The Applicant commented that, if the Authority had been aware of the herbicide spraying earlier, it seemed impossible that any of the three contracts totalling £3.6million of taxpayer funds would have been awarded.
84. The Applicant stated that the Authority could have visited the site and cancelled the contract on the grounds of the damage and misrepresentation but that it did not cancel the contract until September 2024 (in the Applicant’s opinion it appeared that the Authority had realised it would lose the judicial review and the contract would be cancelled anyway).  He argued that its failure to act earlier resulted in many more months of damage on site and he said there was widespread scepticism that the Authority did not know about the herbicide damage for a year.
85. The Applicant argued that clause 13 of the Stobo contract stated that defaults could result in the Forestry Carbon Sequestration Fund being disqualified from grant assistance under rural payments for up to two years. However, he argued that another FOI response had showed that the fund was in the process of making three new woodland applications which, if approved, would involve hundreds of thousands or millions of pounds being paid, by the taxpayer, into a fund in what the Applicant described as “the tax haven of Guernsey”.
86. The Applicant claimed that it appeared that the Authority was ignoring clause 13 of the Stobo contract and was failing to safeguard taxpayer funds, which appeared to demonstrate intentional malpractice and that the Authority had also failed to act when offences were being committed.
87. He claimed that there appeared to have been an abuse of how public funds were supposed to be used and that it was therefore in the public interest that all the requested information was disclosed.
88. Furthermore, the Applicant argued, if it were the case that much of the additional information in relation to Stobo Hope had been generated as a result of judicial reviews, these judicial reviews were caused by the Authority’s incompetence, part of which was in approving the woodland scheme without an Environmental Impact Assessment (EIA) in early 2024.
89. The Applicant submitted that the Authority’s logic seemed to be that information requests could be refused on the basis that they were manifestly unreasonable when the cause of the volume of the information was attributable to the extent of what he described as “malpractice” to begin with – and therefore that the greater the malpractice, the less likely it was that the requested information could be requested.

The Authority’s comments on the public interest

90. The Authority stated that it recognised the public interest in disclosing relevant information as part of open and transparent government, and recognised that there was particular public interest in woodland creation schemes and the impact these had on communities. It said it took this very seriously and that public consultation was a fundamental part of the process.
91. The Authority commented that it worked to make the key information available on request whenever possible and had done so in relation to this scheme in the past.  It stated that work was ongoing to improve access to information about the Authority’s case work and that a new public register had been launched which would, in time, go some way to meeting the public interest in this type of information.
92. The Authority explained that its new Environmental Impact Assessment (EIA) case module on Casebook and the new EIA Public Register went live on 23 June and this meant that EIA screening opinions would now be published on the Authority’s website.  The Authority argued that this would improve the transparency of decision making and might reduce the volume of information requests received.
93. Furthermore, it stated that this created a good foundation for further developments later in 2025 and into 2026 and would, again, go some way to meeting the public interest in this type of information.
94. The Authority argued that there was a strong public interest in ensuring the effective and efficient use of finite public resources and stated that public authorities had a duty to ensure statutory requirements were met, including responding appropriately to EIRs requests.  The Authority stated that the volume of material covered by the request meant that responding would impose a significant and disproportionate burden on it and would be to the detriment of its ability to meet other statutory requirements, and it argued that public authorities must ensure resources were used effectively and efficiently and that excessive time and resource was not spent on responding to EIRs requests – particularly at the expense of other statutory functions.
95. The Authority added that all information associated with a scheme, even when the time period was limited, covered a vast amount of iterative correspondence which formed part of the development and legitimate bureaucracy of this and other schemes and that there was limited public interest is disclosing much of the material.
96. The Authority considered specific public interest arguments made by the Applicant in this appeal.  It argued that it appeared that the Applicant had conflated the public interest with something that was interesting to the public and it referred to how the public interest assessment to be carried out under regulation 10(1)(b) of the EIRs was not an assessment of whether the public was interested in certain information but whether releasing certain exempt information would serve the public interest.
97. The Authority stated that the Applicant’s reference to the facts relating to the events at Stobo and multiple failures by the Authority could not be weighted in favour of disclosure in the public interest because the Applicant had identified no real benefit to the public interest.
98. The Authority also argued that the Applicant’s statements about preventing malpractice, the use and distribution of public money and when the Authority became aware of probable criminality in relation to the woodland scheme were unfounded and could not be weighed when considering the public interest.  It stated that it had already set out the governance and audit arrangements associated with the schemes it administered and strongly refuted the claim it was involved in any criminal or fraudulent activity.  The Authority stated that there was no evidence which would support that claim, and that no claims of fraud or criminal activity had been made against it.
99. The Authority stated that the Applicant had already been informed that no public funds had been paid and it strongly refuted the allegations of fraud, malpractice or criminal activity.  It submitted that it was extremely concerned that the Applicant was making the allegations and that he appeared to be placing misinformation into the community.
100. The Authority argued that this had serious consequences for the wellbeing of its staff, who often lived near woodland schemes.  It stated that while it agreed that the public interest was in favour of disclosing information which revealed evidence of any such activity this was not the case here and the judicial review, which was an administrative check on public decision making, could not be taken as evidence of the Applicant’s claims.
101. The Authority noted that the judicial review to which the Applicant had referred challenged its decision to approve the Stobo Hope scheme and that the scheme would now go through an EIA.  
     The Authority argued that allowing unsubstantiated allegations of criminality to weigh in favour of disclosure in the public interest would set an unreasonable precedent and impose an unmanageable burden on public authorities, requiring them to disprove and rebut unsubstantiated allegations by releasing information which was otherwise properly exempt from disclosure under FOI law.
102. The Authority stated that FGS funding was provided in support of management activity on land in Scotland, that there were no restrictions on where individuals or companies which own the land were located, and that the fact that the company making the application was located in Guernsey (as referenced by the Applicant) was irrelevant.
103. Moreover, the Authority submitted that there was a strong public interest in supporting woodland creation schemes through the appropriate regulatory framework to meet the Scottish Government’s Climate Change Plan (CCP), and that woodland creation made a significant contribution to Scottish Ministers’ objectives for reaching NetZero targets.
104. The Authority recognised that provision of information about its work was in the public interest and that communities and businesses benefited from understanding the process and schemes near them.  However, it rejected the argument that disclosure of all information associated with the woodland schemes supported that aim.  It stated that access was provided on a regular basis to the key documents which formed part of any scheme but that schemes such as Stobo, which often spanned many years, could produce a very significant volume of allied documentation, exchanges and changes the disclosure of which would not add to public understanding of the scheme.
105. Furthermore, it noted the Applicant’s assertion that the information would help shape and inform future policy but stated that a full public consultation, which closed in May 2023, had been undertaken on future forestry grant support in Scotland.  The Authority explained that this consultation had attracted 88 responses from organisations and 99 from individuals and that this would inform the policy and shape of the FGS and be subject to further engagement with Ministers and stakeholders.  The Authority submitted that proper engagement with the public was achieved through the consultation process and shaped and informed by that.

The Commissioner's view on the public interest 

106. The Commissioner has carefully considered all the comments from both the Authority and the Applicant on the public interest.
107. The Commissioner notes the Authority’s comments on tree planting, climate change and Net Zero but in his view, these are not entirely relevant to the specific public interest considerations in this appeal.
108. In the Commissioner’s view, the Authority is wrong to argue that the Applicant has conflated the public interest with something that is of interest to the public.  The Commissioner considers that, while there may be situations where the public is interested in a subject which in itself contains no inherent public interest, that is not the case in this appeal.
109. He would note that situations do arise where the public is interested in a particular issue precisely because there is a public interest in that issue and he considers this to be one such example.
110. The Commissioner considers that potentially wrongful large-scale spraying of herbicide across swathes of Scottish countryside is a matter of significant public interest, as is the enforcement of regulations designed to prevent illegal spraying.
111. The Commissioner notes the Authority’s argument about unsubstantiated allegations of criminality, and he acknowledges that it would not be in the public interest for an authority to be forced to answer claims which were made gratuitously and/or recklessly.
112. However, he does not consider the Applicant’s arguments made in this case to be either gratuitous or reckless. The Commissioner considers the Applicant to be raising valid and considered questions, many of which arise from apparent inconsistencies, uncertainties or issues of public interest arising from information or public statements provided by the Authority itself.
113. e would He also notes the Authority’s observation that, while the Applicant had made many requests relating to different schemes, this was the only instance where the Applicant had raised the particular concerns and allegations he did in this case.  The Commissioner’s view is that this suggests that (rather than raising scattergun concerns across all or many such schemes) the Applicant has specific concerns, which he has laid out in some detail, about this particular scheme, and that public comments by the Authority[8] itself lend weight to these concerns.
114. Moreover, the Commissioner does not share the Authority’s view that the Applicant had identified no real benefit to the public interest. He considers that information about the spending of millions of pounds of public money, not least in terms of factors which may or may not impact the handing over of grant money to a third party, is potentially very much in the public interest.
115. The Commissioner also notes the Authority’s comments on the public consultation carried out, but he considers that this has limited relevance to the specific circumstances of this appeal where areas of concern emerged only after that consultation had concluded.
116. The objective of the Aarhus Convention[9], in Article 1 states:

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”

117. The EIRs confer those rights in Scotland.  The Commissioner notes that there is also a public interest in protecting the integrity of the EIRs and in safeguarding the rights of persons to obtain environmental information, in those circumstances where the public interest merits it, even where complying with those rights incurs significant costs to public authorities.
118. The Commissioner considers that this is one such case.  He is satisfied that the public interest in the Authority responding to request (iii) outweighs that in upholding the exception.  The Commissioner acknowledges that redaction may be required, reducing the amount of information actually made available, but he does not accept the possibility of a reduced amount of information being available at the end of this exercise (and the amount can only be speculative until the exercise has actually been carried out) as weighing to a significant extent against the strong public interest he has identified in the Applicant’s favour.
119. The Authority has a duty to respond to the request (regulation 5(1)), it must apply a presumption in favour of disclosure (regulation 10(2)(1)) and, if the information is voluminous and complex, it can (ordinarily) issue a notice advising of an extension of time (regulation 7).
120. Responding to requests for information is a core part of the duties of public authorities, alongside other statutory functions, and public authority resourcing must be capable of ensuring that these functions are carried out in accordance with the requirements of the EIRs.
121. On balance, therefore, the Commissioner accepts that, in all the circumstances of this case, the public interest arguments in favour of maintaining the exception in regulation 10(4)(b) of the EIRs are outweighed by the public interest in responding to request (iii) and making the requested information available.  The Commissioner finds that the Authority was not entitled to withhold the requested information under this exception, and he requires the Authority to respond to request (iii).

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 rely on the exception in regulation 10(4)(b) of the EIRs for information which would fulfil the Applicant’s request (iii) and therefore failed to comply with regulation 5(1) of the EIRs in refusing to respond to request (iii).

The Commissioner therefore requires the Authority to respond to the Applicant’s requirement for review in accordance with the requirements of the EIRs (otherwise than in terms of regulation 10(4)(b), by 5 January 2026.

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

 

10 November 2025