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Decision 283/2025

Decision 283/2025:  Correspondence and information relating to a specified nursery

Authority: East Lothian Council
Case Ref: 202501245

 

Summary

The Applicant asked the Authority for correspondence and information relating to a specified nursery.  The Authority withheld the information on the basis it was commercially sensitive.  The Commissioner investigated and found that the Authority had not fully informed the Applicant of the exemptions it wished to rely upon to withhold the information requested and that it had failed to satisfy him that it had conducted adequate searches.  He required the Authority to carry out a fresh review.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 16(1) and (3) (Refusal of request); 47(1) and (2) (Application for decision by Commissioner).

Background

  1. On 23 June 2025 the Applicant made a request for information to the Authority.  She asked for:

    “… all correspondence, documents and any other files you have concerning or mentioning Pear Tree Nursery on West Road in Haddington.  This should include the reasoning for the decision not to provide funding for 3+ year olds.  The period to which this request pertains is the whole of 2025, from 1 January to the date of this email.”

  2. The Authority responded on 21 July 2025.  It withheld the information requested under the exemption in section 33(1)(b) of FOISA.
  3. Later that same day, the Applicant wrote to the Authority requesting a review of its decision.  She stated that she was dissatisfied with the decision because she did not agree that the exemption in section 33(1)(b) of FOISA applied and that, if it did, the public interest favoured disclosure.
  4. The Authority notified the Applicant of the outcome of its review on 24 July 2025, which fully upheld its original decision.
  5. On 28 July 2025, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  She stated that she was dissatisfied with the outcome of the Authority’s review for the same reasons as in her requirement for review.

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 9 April 2025, the Authority was notified in writing that the Applicant had made a valid application.  The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information, and the case was subsequently 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 related to the searches it had carried out and the applicability of the exemption in section 33(1)(b) of FOISA. 

Commissioner’s analysis and findings

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

The Authority’s change of position

  1. Section 16(1)(c) of FOISA requires Scottish public authorities to inform applicants of the exemption(s) that they wish to rely upon. Subject to certain limits in section 16(3) of FOISA, section 16(1)(d) requires public authorities to explain why the claimed exemption(s) apply.
  2. During the investigation, the Authority maintained that it considered some of the withheld information was commercially sensitive.  However, it said that some of the other withheld information material constituted drafts of information that would be published at a later date.
  3. The Authority explained that it considered that premature publication of this information could result in “misunderstandings”, as the information formed part of a process that was rapidly changing and may bear little resemblance to the final documentation once published.  In view of this, the Authority indicated that it would reassess the withheld information to identify the correct exemptions under FOISA to apply.
  4. While public authorities are entitled to rely upon new exemptions during his investigation, the Commissioner considers that authorities should generally be able to identify the applicable exemptions (and, where appropriate, apply the public interest test for these exemptions) by the date of the review outcome at the latest.
  5. The Commissioner has observed, for example, in Decision 218/2025[1] and Decision 180/2024[2]that late reliance on exemptions under FOISA to withhold information results in applicants being unable to challenge these exemptions properly in an application to the Commissioner.
  6. In all of the circumstances of this case the Commissioner is satisfied that the Authority, by failing to correctly identify, and notify the Applicant of, all of the exemptions that it considered to be applicable to the withheld information, failed to comply with sections 16(1)(c) and 16(1)(d) of FOISA.

Searches

  1. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority which holds it is entitled to be given that information by the authority, subject to qualifications which are not applicable in this case.
  2. In terms of section 1(4) of FOISA, the information to be provided in response to a request under section 1(1) is that falling within the scope of the request and held by the authority at the time the request is received.  This is not necessarily to be equated with information an applicant believes the authority should hold.
  3. The Applicant’s request, as written, seeks all correspondence, documents and any other files concerning or mentioning Pear Tree Nursery.  While the request goes on to specify information that should be included, it does not limit the request to that information.
  4. Despite the wide-ranging scope of the Applicant’s request, the Commissioner notes that the information identified by the Authority all appears to originate from the Authority’s Early Learning and Childcare department.  He considers it possible (even likely) that the Authority holds further information that falls within the scope of the Applicant’s request that it has failed to identify and locate.
  5. The Commissioner asked the Authority to provide evidence of the searches it had carried out, including whether, for example, it considered whether its primary education or social work departments held information falling within the scope of the Applicant’s request.  The Authority did not provide evidence of the searches it had carried out to the Commissioner.
  6. In all cases, it falls to the public authority to persuade the Commissioner, with reference to adequate, relevant descriptions and evidence, that it holds no more information than it has identified and located in response to the request.  In this case, given the absence of evidence on the searches it had carried out, the Commissioner is not satisfied that the Authority has achieved this.

Next steps

  1. The Commissioner has found that the Authority failed to inform the Applicant of all of the exemptions in FOISA that it considered applicable to the withheld information and that it had failed to satisfy him that it had identified all information falling within the scope of the Applicant’s request.
  2. The Commissioner therefore requires the Authority to provide the Applicant with a revised review outcome (in terms of section 21 of FOISA), which must:

  • consider carefully the terms of the request and ensure that its interpretation of the request is reasonable and fully addresses the request

  • take adequate and proportionate steps to establish what information is held, using appropriate search terms and searching all locations and mediums where relevant information may be held

  • retain evidence of those searches in the event of a further appeal to the Commissioner

  • ensure that it clearly identifies any information that is being withheld and justifies and explains why that information is being withheld.

  1. The Authority’s revised review outcome, by fulfilling the above conditions, will enable the Applicant to, if necessary, make a new application in which she can fully challenge the Authority’s reasons for refusing to provide any withheld information to her.
  2. The Scottish Ministers' Code of Practice on the discharge of functions by Scottish public authorities under FOISA and the Environmental Information 6 (Scotland) Regulations 2004 (the Section 60 Code[3]) contains best practice guidance for public authorities on discharging their functions under FOISA and the EIRs, including in relation to the provision of advice and assistance.
  3. As noted above, the Applicant’s request, as written, is wide-ranging.  However, she appears to be particularly interested in a specific subset of information relating to the decision not to provide funding for 3+ year olds.
  4. Paragraph 5.3.3 of Part 2 of the Section 60 code states that if an authority is unsure about what information the applicant wants, it should obtain clarification by performing its duty to provide reasonable advice and assistance to the applicant.
  5. Given the wide-ranging scope of the Applicant’s request and her apparent interest in a particular subset of information, the Commissioner would encourage the Authority to provide advice and assistance to the Applicant, in terms of section 15(1) of FOISA, with a view to ensuring that it has reached a clear, and mutually shared, understanding of the scope of the request before issuing its revised review outcome in terms of section 21 of FOISA.

Decision 

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

Specifically, the Authority has failed to provide the Applicant with adequate justification for its refusal to disclose the information requested and it has failed to satisfy him that it has identified all information falling in scope of the request.

The Commissioner therefore requires the Authority to provide a new response to the Applicant’s requirement for review (in terms of section 21 of FOISA), by 15 January 2026. In doing so, the Authority must have regard to the conditions set out in paragraph 23.

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.

 

Cal Richardson

Deputy Head of Enforcement 


1 December 2025