Decision 282/2025: Whether request was manifestly unreasonable
Authority: Scottish Forestry
Case Ref: 202500592
Summary
The Applicant asked the Authority for information about screening opinions. The Authority refused to respond to the request on the grounds that it was manifestly unreasonable. The Commissioner investigated and found that the exception had been incorrectly applied. He therefore required the Authority to issue the Applicant with a new 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); 16(4) (Review by Scottish public authority); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).
Background
- On 1 January 2025, the Applicant made a request for information to the Authority. He asked for all screening opinions since 1 April 2019, as individual PDFs for each project.
- The Authority responded on 29 January 2025. It refused to provide the information on the grounds that regulation 10(4)(b) (Manifestly unreasonable) of the EIRs applied to the request. It commented that this was due to the high number of records covered by the request and the associated high burden of collating and presenting the information for publication.
- On 3 February 2025, the Applicant wrote to the Authority requesting a review of its decision. The Applicant stated that he was dissatisfied with the decision because he did not agree the exception applied. He argued that under the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017[1] (the 2017 Regulations) the Authority was legally required to publish screening opinions.
- The Authority notified the Applicant of the outcome of its review on 26 February 2025 and upheld its original response without modification. It explained that a search for all screening opinions since 1 April 2019 had returned over 1,600 documents. The Authority also informed the Applicant that, by the end of August 2025, a new public register would be available which would allow for the direct inspection of forestry Environmental Impact Assessment documents, including screening opinions.
- On 21 April 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 his request was manifestly unreasonable. He argued that the information he had requested (screening opinions) was information that the Authority was legally required to make available for inspection, under the 2017 Regulations.
Investigation
- The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
- On 14 May 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.
- 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 why it considered the request to be manifestly unreasonable.
Commissioner’s analysis and findings
- The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.
Handling in terms of the EIRs
The Authority considered that as the Applicant's request was for environmental information, it was required to deal with it under the EIRs.
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.
The Applicant has not challenged the Authority’s decision to handle his request under the EIRs and the Commissioner is satisfied, in the circumstances, that the information requested by the Applicant falls within the definition of environmental information set out in regulation 2(1), in particular, paragraphs (a) and (c) of that definition.
Section 39(2) of FOISA – Environmental information
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.
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.
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
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.
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)).
Under the EIRs, a public authority may refuse to make environmental information available if one or more of the exceptions in regulation 10 applies.
Background – screening opinions
The Authority explained that anyone who wanted to carry out forestry work must first apply for a screening opinion from it (the Authority). The screening opinion was based on information and evidence provided by the applicant (i.e. the party who wanted to carry out the forestry work).
The screening opinion would either conclude that consent for the proposed work was not required, based on the information provided, or that consent was needed, in which case an Environmental Impact Assessment (EIA) would be carried out.
The Authority stated that the legislation governing the process was the 2017 Regulations and that there were four types of forestry work where thresholds for screening applied: afforestation, deforestation, forestry roads and forestry quarries. The Authority explained that the screening process set out to identify any likely significant effects on key environmental factors and to draw an evidence-based conclusion on whether EIA consent was required.
Furthermore, the Authority stated that on 23 June 2025, it had launched a new EIA public register which would make it easier (for the public) to access EIA screening opinions by publishing them online. It explained that this would also let people search using maps and see where forestry projects have been screened and approved. It stated that projects where a scoping opinion or final decision (determination) has been made would be shown on a different part of the register.
Moreover, the Authority noted that the information which was the subject of the request was planned for future publication. It stated that by the end of September 2025, the woodland creation screening opinions for 2019 would be published and that the remainder of the opinions would thereafter be published by year at the end of subsequent months (i.e. 2020 screening opinions would be published by the end of October 2025, 2021 screening opinions would be published by the end of November 2025, and so forth until publication of all documents was achieved by February 2026).
Regulation 10(4)(b) of the EIRs – Manifestly unreasonable
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.
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:
i) would impose a significant burden on the public body;
ii) does not have a serious purpose or value;
iii) is designed to cause disruption or annoyance to the public authority;
iv) has the effect of harassing the public authority; or
v) would otherwise, in the opinion of a reasonable person, be considered manifestly unreasonable or disproportionate.
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 regulation 10(4)(b)
The Applicant submitted that the Authority was concealing information, in the form of screening opinions, from the wider public. He stated that screening opinions were influential in whether or not proposed forestry projects went ahead or not and claimed that many such forestry schemes resulted in significant environmental damage.
Furthermore, the Applicant argued that screening opinions were not published on the Authority’s website, and this was in contravention of the 2017 Regulations. The Applicant submitted that the Authority restricted access to these screening opinions, and members of the public who wanted to view a screening opinion had to request one from an individual conservancy (that is, one of the Authority’s five local offices). The Applicant argued that this process allowed only a very limited number of screening opinions to be obtained.
The Applicant also argued that the Authority was legally required to publish the information he had requested on its website, but it had not done so. He noted that if the Authority had fulfilled its legal obligations, he would not have had to make the information request.
The Applicant claimed that the Authority already had the information readily available as PDFs and that it had already collated information in relation to plantation size and location, and dates of screening decisions, and that it had published this on a spreadsheet in December 2024 (but he argued that that this did not contain any information on the screening opinions themselves).
Moreover, the Applicant argued that screening opinions often contained questionable or what members of the public believed to be manifestly untrue claims, such as the assertion that Sitka spruce plantations in ecologically sensitive areas did not have significant adverse impacts.
He added that, even if the Authority had not been required to publish the screening opinions, there was an enormous public interest in doing so, in order that claims made by the Authority within these screening opinions could be examined by others, including academics, scientists and ecologists.
The Applicant stated that the Authority imposed financial and time burdens on local communities (in relation to those communities trying to access information) while using the exception at 10(4)(b) of the EIRs to suppress information. He argued that the Authority did not provide information of substance on its website in relation to proposed woodland schemes with only brief references to the public register and locations on maps.
The Applicant noted that this differed from public planning online portals which provided local communities with relevant information pertaining to planning applications. He argued that forestry applications were not generally in the public domain, so members of the public had to obtain information via information requests. The Applicant added that members of the public were often unfamiliar with the system, unsure of the questions to ask and attempting to acquire information took time and often caused frustration.
The Applicant claimed that the Authority was frequently obstructive in providing information and that if it perceived too much information was being asked for it dismissed the request as manifestly unreasonable, which he argued unfairly portrayed requesters as vexatious.
The Applicant also claimed that the Authority engaged with those involved in developing forestry schemes at significant time and expense to the taxpayer, while virtually ignoring the concerns of members of the public.
The Authority’s comments on regulation 10(4)(b)
The Authority submitted that it had considered an extension to the deadline for responding to the request, but had concluded that, even if it were to implement this, it would not have met the extended 40 day deadline.
The Authority submitted that it had calculated that the exact number of screening opinions falling within scope of the request was 1,589 (compared to more than 1,600 which it had estimated at the time of the request).
The Authority referenced the Commissioner’s guidance on the exception at 10(4)(b)[2] and stated that, while it recognised that the factors listed in paragraph 18 of that guidance were not a checklist, it considered that factors (i) and (v) were relevant in this case.
The Authority stated that there was no simple way to collate the 1,589 documents and explained that this would require opening all the individual case files to locate and access each individual screening opinion within that case file. It stated that screening opinions were held in individual case files over the five conservancies within the Authority, and that the process for undertaking screening opinions and storing them had changed over time.
Furthermore, the Authority submitted that screening opinions were stored in a range of ways, meaning that they were not necessarily immediately and obviously identifiable within casefiles, and that a proportion of screening opinions, from 1 April 2019 onwards, may be paper documents which would take longer to handle as they would need to be scanned.
The Authority argued that many months of work would be required to locate, convert, redact and publish the information requested and it was not possible to provide this information within the 20, or at most 40, working days afforded to comply with a request made under the EIRs.
The Authority stated that responding to the request was manifestly unreasonable because the data was not easily accessible and would require significant resource, over five conservancies, to locate, manually retrieve, convert and upload every screening opinion. These would have to be centrally placed and redacted, scheduled, reduced in size, and filed over many folders in order to send to the Applicant. The Authority argued that this was a considerable amount of work, which was why it had asked if the Applicant could narrow his request.
The Authority provided an estimate of the time taken to comply with the request. It stated that the average time to locate a single screening opinion (based on a sample) was 15 minutes per document which, multiplied out, was 23,835 minutes (397 hours). It explained that this work included locating the documents and filing them in a central location for further handling and stated that this time may increase if handling paper copies.
The Authority calculated that the time taken to redact the total number of expected documents, based on four minutes per document (1,589 x 4) was 6,356 minutes.
It based this on the redaction of a four-page document taken from a sample of 20 screening opinions with six of the sample comprising four pages (the minimum size of document from this sample of 20) and the largest in the sample comprising nine.
Overall, the Authority calculated it would take 30,191 minutes, or 503 hours, to locate, file and redact the information within scope of the request. It clarified that for all historic screening opinions the following type of work would have to be undertaken:
i) Identify in the correct folder (digital or paper) where the screening opinion was
ii) Extract the relevant document(s) (or scan if the document was paper)
iii) Carry out any necessary redaction
iv) The member of staff that would sign off the EIR would also check the documents for complete and correct redactions
v) Documents would be gathered into many separate folders for sending to the applicant via many emails (this would be needed due to email size restrictions).
The Authority argued that some of the 1,589 screening opinions contained embedded maps and some had separate maps. Given this, it stated that the amount of documents within scope of the request would be greater than 1,589 and it submitted that the screening opinions and maps would all need to be checked and possibly redacted for names and/or signatures, sensitive species nesting or breeding sites and/or sites for commercial protection.
Moreover, the Authority stated that the request would take significantly longer than 503 hours to comply with when the time taken to consider redactions and quality check those redactions was also taken into account, and it argued that this demonstrated that the request was disproportionate and was manifestly unreasonable in terms of regulation 10(4)(b) of the EIRs.
The Authority also addressed the staffing costs of responding to the request and calculated that, using a similar method to that laid out in section 12 of FOISA, which capped the salary costs to £15 per hour, this would be £7,545.
However, the Authority argued that this did not reflect the actual cost based on current salaries and the true cost would be £13,218.24. The Authority provided details of the staff required to carry out the necessary work, hourly rates and other details of the different roles used to arrive at this figure.
The Authority addressed its obligations under The Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017[3]. It acknowledged that both the EIRs and the 2017 Regulations were related statutory schemes, and that both aimed to implement the overarching objectives of the Aarhus Convention[4] which was designed to facilitate public participation in environmental decision-making.
The Authority also argued, however, that it understood there to be nothing in FOISA, the EIRs, case law or the Commissioner’s guidance which stated that an authority was precluded from relying on the exception at 10(4)(b) of the EIRs because it had not complied with a separate statutory duty that sat outside the Freedom of Information framework.
It stated that the volume and nature of the request would clearly, as set out in its arguments, impose a significant burden on it and that in the circumstances it was therefore entitled to rely on the manifestly reasonable exception.
The Commissioner’s view – regulation 10(4)(b)
The Commissioner has carefully considered all of the submissions from the Applicant and the Authority.
As previously discussed, the Commissioner’s briefing on regulation 10(4)(b) of the EIRs[5], 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.
The Commissioner notes the Authority’s calculations on the burden in terms of both time and of financial costs and that the figures arrived at by the Authority in those terms both arise directly from the volume of screening opinions which fall under the scope of the request.
He notes that on the Authority’s website is a spreadsheet of projects, covering each of the five regional conservancy areas, which includes the property name (sometimes also with a reference number) local authority, the nearest town, a grid reference, whether or not EIA consent was required, and the exact date of the screening opinion for each project, as well as the type of project and the amount of land involved.
Given the extent of detail which the Authority has obviously already recorded, including the exact names and grid locations of the relevant projects and, crucially (given the information which has been requested) the exact dates of virtually all screening opinions, the Commissioner does not find the Authority’s claims, about the potential issues it might face locating the relevant documents, convincing.
He also notes that the Authority, by its own admission, ought to have been publishing the screening opinions over a period of years in order to fulfil its legal obligations under The Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017, but that it has failed to fulfil this legal obligation.
The Commissioner has taken account of the conclusion by Environmental Standards Scotland (ESS) (following an ESS investigation[6]) that the Authority had failed to comply with this statutory duty to make relevant forestry EIA documents available for inspection.
The Commissioner has also considered the Applicant’s argument that it was only necessary for him to make the information request because of this failure by the Authority to make the information available as it was required to do. In his view, the Applicant’s argument is a compelling one because, had the screening opinions been published as legally required, there would be no need to request them under the EIRs.
Furthermore, the Commissioner considers that it is unacceptable for an authority to fail to fulfil its legal obligations to make information available and then to argue that the amount of work needed to remedy this failure justifies its decision to categorise a request for that information as manifestly unreasonable.
In the Commissioner’s view, to accept such an argument would be to accept that the greater the failure of an Authority in not publishing information it was obliged to publish, the stronger its argument would be for not then making the information available in response to an information request (because of the level of work required to fulfil that request).
The Commissioner notes the Authority’s statement that it understood there to be nothing in FOISA, the EIRs, caselaw or the Commissioner’s guidance which stated that an authority was precluded from relying on the exception at 10(4)(b) of the EIRs because it had not complied with a separate statutory duty that sits outside the Freedom of Information framework. In his view, (while he is not directly responsible for enforcing these 2017 regulations) where a failure to comply with any such duty is directly relevant to, and is the reason for, an application to him for a decision, he cannot accept that he is bound to ignore it.
In this case, as the Authority has acknowledged, the obligation in question is designed to fulfil the overarching objectives of the Aarhus Convention – as, of course, are the EIRs. The Commissioner cannot accept that the two sets of requirements are as disconnected as the Authority has claimed. Neither can he accept that a failure to fulfil the duty to publish – which, by extension, must also be a failure to meet the overarching objectives of Aarhus – can be anything other than a key consideration in determining whether complying with a request for the same information can be manifestly unreasonable for the purposes of regulation 10(4)(b). While there might still, conceivably, be circumstances in which compliance with a request of this kind could be manifestly unreasonable, the Commissioner cannot accept that as being the case where the “burden” of complying follows so directly (and singularly) from the earlier failure to fulfil the duty to publish.
In relation to the issue of whether dealing with the request would divert resources away from other statutory functions, the Commissioner’s view is that dealing with the request would – rather than divert the Authority from fulfilling statutory obligations – assist the Authority in meeting other statutory obligations (in addition to its statutory EIRs obligations) which it has so far failed to fulfil.
For the reasons set out above, the Commissioner considers that the Authority was incorrect to conclude that the exception in regulation 10(4)(b) of the EIRs applied to the request and in doing so it failed to comply with the EIRs. As he has found that the exception does not apply, the Commissioner will not go on to consider the public interest test in relation to the exception.
The Commissioner requires the Authority to respond to the Applicant’s request in accordance with the requirements of the EIRs, otherwise than in terms of regulation 10(4)(b). In other words, the Commissioner requires the Authority to carry out a fresh review of its response to the Applicant’s request in accordance with regulation 16 of the EIRs, and to communicate the outcome 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.
The Commissioner 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 and therefore failed to comply with regulation 5(1) of the EIRs in refusing to respond to the request.
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 15 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
1 December 2025
