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Decision 280/2025

Decision 280/2025:  Correspondence and discussions regarding the sheep on St Kilda 


Authority: NatureScot
Case Ref: 202500705
 

Summary

The Applicants asked the Authority for information relating to the sheep of St Kilda. The Authority provided the Applicants with the information it held, but they remained dissatisfied.  The Commissioner investigated and found that the Authority had failed to fully comply with the EIRs as it had not identified all of the information falling within the scope of the request.  However, by the end of his investigation the Commissioner was satisfied that the Authority held no further information relevant to the request beyond that which it had already disclosed to the Applicant.

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) Environmental information; 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); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).

Background

  1. On 6 December 2024, the Applicants made a request for information to the Authority. 

    They asked for the Authority’s correspondence and discussions, internal and external, pertaining to the sheep on the St Kilda archipelago covering the period from the 1 November 2019 to 6 December 2024.
  2. The Authority responded on 3 February 2025 and disclosed the information with personal data withheld under regulation 11(2) of the EIRs.
  3. On 5 March 2025, the Applicants wrote to the Authority requesting a review of its decision. The Applicants stated that they had expected the Authority to have provided them with more information, particularly in relation to legal and ethical discussions.  They stated that if the Authority did not hold any further information, it should confirm this.
  4. The Authority notified the Applicants of the outcome of its review on 11 April 2025.  It identified further information falling in the scope of the request and it disclosed this to the Applicants, with the personal data redacted under regulation 11(2) of the EIRs.
  5. On 6 May 2025, the Applicants 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 Applicants stated they were dissatisfied with the outcome of the Authority’s review because they were concerned that the searches had not been thorough or wide-ranging enough, and they believed that some of the information falling within the scope of the request had not been identified.

Investigation

  1. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
  2. On 27 May 2025, the Authority was notified in writing that the Applicants had made a valid application, and the case was allocated to an investigating officer.
  3. 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 steps taken to ensure that all information falling within the scope of the request had been identified. 

Commissioner’s analysis and findings

  1. The Commissioner has considered all of the submissions made to him by the Applicants and the Authority. 

Scope of the investigation

  1. The Applicants have not challenged the Authority’s decision to redact personal data under regulation 11(2) of the EIRs.
  2. Therefore, the Commissioner’s decision in this case will only consider whether the Authority has identified all of the information falling within the scope of the Applicants’ request.

Handling in terms of the EIRs

  1. The Authority considered the Applicant’s request in accordance with the EIRs, on the basis that the information requested was environmental information, as defined in regulation 2(1) of the EIRs.
  2. Where information falls within the scope of 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.
  3. The Commissioner is satisfied that the information covered by this request (information relating to the sheep of the St Kilda archipelago) is environmental information as defined in regulation 2(1) of the EIRs.  In reaching this conclusion, the Commissioner has considered the identified information, along with paragraphs (a), (b) and (c) of the definition of environmental information set out in regulation 2(1) of the EIRs and he agrees with the Authority in categorising the information as environmental. He notes that the Applicants have not disputed the Authority’s decision to handle his request under the EIRs.

Section 39(2) – Environmental information

  1. In its original response, the Authority confirmed that it was applying section 39(2) of FOISA to the request.  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.
  2. As noted above, the Commissioner accepts that the Authority was entitled to apply this exemption to the information requested, given his conclusion that it is properly classified as environmental information.
  3. 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 requests 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.
  4. The Commissioner therefore concludes that the Authority was correct to apply section 39(2) of FOISA and will consider the Applicants’ information request under the EIRs.

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

  1. Regulation 5(1) of the EIRs requires a Scottish public authority which holds the 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.
  2. 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 make the information available, unless a qualification in regulation 6 to 12 applies (regulation 5(2)(b)).
  3. 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 lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.

Information falling within the scope of the request

  1. During the investigation, the Authority identified more information falling within the scope of the Applicants’ request that had not been released.  It subsequently disclosed this information to the Applicants with personal data redacted under regulation 11(2) of the EIRs.  The Authority apologised to the Applicants for this oversight, and for failing to identify (and disclose) this information earlier.
  2. The Applicants acknowledged that the recently disclosed information addressed some of their concerns.  However, they remained troubled by several omissions, one of which they considered to be of considerable importance.  Specifically, the Applicants noted the absence of any reference to communications during the period following their April 2023 report to Police Scotland regarding a potential offence under the Wildlife and Countryside Act 1981.   They referred to the fact that one of the Authority’s directors admitted being aware that Police Scotland had “considered” a “potential offence”, yet there appeared to be no record of how his “understanding” came about.
  3. The Applicants argued that it was implausible that Police Scotland’s enquiries would not have involved the Authority.   Despite the disclosure of the additional information, the Applicants remained dissatisfied with the outcome of the Authority’s searches, and they asked the Commissioner to investigate the thoroughness of those searches.
  4. The Authority was subsequently asked to respond to specific questions about the searches it had carried out.  In particular, it was asked to carry out searches for the time period that followed the Applicants report to Police Scotland in April 2023.  The Authority was asked to provide the Commissioner with the results of those searches.  The Authority was also asked to provide the Commissioner with information about the processes it would follow if it was contacted by Police Scotland in relation to an alleged crime or complaint.  The Commissioner wanted to understand its usual or normal practices in relation to such an incident.
  5. In its response, the Authority provided the Commissioner with a Memorandum of Understanding (MoU) between itself and Police Scotland.  The MoU aimed to establish a framework for cooperation between itself and Police Scotland for the purpose of assisting with protection of wildlife and the natural environment, and the prevention and investigation of related offences.
  6. The Authority also provided the Commissioner with correspondence from its wildlife crime officer, confirming that he had carried out searches for additional information (of both his email account and the Authority’s electronic Records and Document Management System (eRDMS) but had not located anything further.

The Authority’s searches

  1. The Authority provided the Commissioner with details of the searches it had carried out. It stated that it conducted an initial search of its eRDMS to identify staff who had created or contributed to documents or records concerning the St Kilda sheep. Those identified staff members were asked to search for any relevant information. A list of the identified staff was provided to the Commissioner.
  2. The Authority explained that its searches covered eRDMS, Teams, email accounts and laptops. It confirmed that Zoom, Messenger and WhatsApp were not used to create or edit documents
  3. The Authority provided the Commissioner with background information on its eRDMS.  It stated that its eRDMS had been in place since 2005 and was a comprehensive store of its electronic records over the past 20 years.   The Authority commented that its implementation and use of eRDMS was, and is, supported by training and policies and the removal of shared drives and other alternative storage locations.
  4. The Authority explained that the eRDMS has a very powerful search engine which supports searching by free text and/or metadata.  This means that it can enter a search term such as “St Kilda sheep” and retrieve all documents containing those criteria in either the title, body text or metadata.  The search results also showed who created each document and when. The Authority submitted that its search results would also return any documents destroyed as part of its information lifecycle management.
  5. It added that, in addition to the eRDMS, staff were also required to search their email accounts and laptops, plus any hard copy work notebooks they have.  It stated that it no longer had shared network drives or personal network drives.  It explained that Teams channels were automatically harvested to the eRDMS once a day, so any relevant information would be picked up via the eRDMS searches. It noted that Teams chat was only retained for 15 days so there was no store of older messages to search.
  6. The Authority explained that its staff were not required to keep all information. They were required to retain information of corporate value, and they need to make an informed judgement on what to save as part of the corporate record.
  7. The Authority confirmed that its records have been predominantly managed electronically for circa 20 years, and that it now received/created very little physical information.  In the period covering the information request (November 2019 onwards) all information would have been created electronically, and any incoming paper documents would have been scanned
  8. The Authority provided the Commissioner with a copy of its Records Classification Scheme and associated Retention and Disposal Policies. It stated that given the relative recency of the information requested (November 2019 onwards) it was unlikely that any of the records would have been subject to its retention and disposal processes, and there was no evidence of destroyed information when the searches were carried out.
  9. The Authority provided the Commissioner with a copy of the eRDMS search results, which comprised a CSV document that listed 200 documents, and which included a relevance rating allocated to each document.
  10. It submitted that a search limit of 200 documents was appropriate in this case as the results (towards the end of the 200 documents) were already starting to pick up irrelevant material.  It added that widening the search results limit would only return even more irrelevant information.
  11. The Authority submitted that at both request and review stages it genuinely believed it had carried out detailed, thorough and wide-ranging searches for all relevant information held. However, in carrying out further searches as part of its submissions, it acknowledged that it had identified some documents that were missed.
  12. The Authority stated that, after comparing the recent search results with the information identified at the request and review stages, it discovered that some documents had been omitted from the material originally released in response to the original request.  
    It acknowledged that these documents were also not identified during the review stage and it offered its apologies to both the Commissioner and the Applicants for this oversight.
  13. The Authority stated that it was satisfied that the omission of these documents was due to human error.  It explained that it holds a substantial volume of information on the subject of the St Kilda sheep, and that the failure to identify these particular documents during the searches carried out at both the request and review stages was a genuine oversight.

The Commissioner's view on the Authority’s searches

  1. The Commissioner has taken account of the submissions provided by the Applicants, which explained why they believed that the Authority held further information falling within the scope of their request.  
  2. Having closely considered the terms of the request and the submissions and evidence provided by the Authority, the Commissioner is satisfied that the Authority’s interpretation of the request was reasonable and not unduly narrow.
  3. By the end of his investigation, the Commissioner is satisfied that the Authority had taken adequate and proportionate steps to identify information falling within the scope of the Applicants’ request.  He is also satisfied, on the balance of probabilities, that it does not hold any further relevant information.  He considers that the Authority’s searches were reasonable in the sense of those tasked to carry them out, the locations searched, and search terms used.
  4. The Commissioner has taken account of the concerns raised by the Applicants regarding the lack of any records following their complaint to Police Scotland in April 2023.  However, while he acknowledges that the Applicants expected information to be held, he is satisfied, based on the evidence provided by the Authority, that it is not.
  5. The Commissioner notes the Authority’s comments that its failure to identify all relevant documents in its original response or review outcome was a genuine oversight and due to human error.  He acknowledges that any policy or procedure that involves a human element (such as searching for information or identifying relevant information) will include a vulnerability and, checks and balances have to be put in place to minimise the risks of such errors.  In this case, the fact that documents were missed at both the request and review stage suggests that checks and balances were not sufficiently implemented.
  6. The Commissioner recognises that the subject matter in this case encompassed a large number of documents and he acknowledges that the omission of relevant data was always a risk.  However, the Commissioner would note that such oversights can undermine confidence in the completeness and reliability of the Authority’s responses.  Given this, the Authority may want to consider whether there are any steps or procedures that might help minimise such genuine oversights in future.
  7. Taking all of the above into account, the Commissioner must find that the Authority failed to comply with regulation 5(1) of the EIRs by not identifying all the information falling within the scope of the request in its review outcome.
  8. Having considered the submissions provided by the Authority, and the subject matter and scope of the request, the Commissioner is satisfied that the Authority does not hold any further recorded information.  While the Applicants believed and expected further information to be held by the Authority, the Commissioner is satisfied that this is not the case.
  9. As the Authority has disclosed all of the information it identified during the investigation, the Commissioner does not require the Authority to take any action in relation to this breach of regulation 5(1) of the EIRs.

Decision 

The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) and with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the Applicants.

He finds that the Authority failed to identify all of the information falling within the scope of the Applicants' information request by the time it issued its review outcome (and thereby failed to comply with regulation 5(1) of the EIRs).

However, the Commissioner is satisfied, on balance, that the Authority has now identified and disclosed to the Applicant (subject to third party personal data redactions) all of the information it held that fell within the scope of their request.

In the circumstances, the Commissioner does not require the Authority to take any action in response to this failure in response to the Applicants' application. 

Appeal

Should either the Applicants 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.

 

Jennifer Ross

Deputy Head of Enforcement 


28 November 2025