Decision Notice 081/2025: Meeting between the Prince of Wales and the First Minister of Scotland

Authority: Scottish Ministers
Case Ref: 202201049
 

Summary

The Applicant asked the Authority for information relating to a meeting between the then First Minister and the then Prince of Wales, on 23 June 2015.  The Authority provided some information but largely refused the request on the basis that it did not hold any information. 

The Commissioner investigated and accepted that the Authority did not hold information falling within the scope of most of the request, but he also found that the Authority did hold further relevant information which it had not disclosed to the Applicant or withheld under an exception.   He required the Authority to disclose that information 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) (Health, safety and the environment); 47(1) and (2) (Application for decision by Commissioner); 49(3) (Commissioner’s decision).

The Environmental Information (Scotland) Regulations 2004 (the EIRs) regulations 2(1) (definition of “the Act”, “applicant”, “the Commissioner” and paragraphs (a), (b) and (c) of the definition of “environmental information”); 5(1) (Duty to make environmental information available on request); 10(1) and (4)(a) (Exceptions from duty to make environmental information available); 17(1), (2)(a), (b) and (f) (Enforcement and appeal provisions)
 

Background

1. On 22 May 2022, the Applicant made a request for information to the Authority.  He asked for information relating to a meeting between the then Prince of Wales and Nicola Sturgeon (Ms Sturgeon) at the Palace of Holyrood House on 23 June 2015.  

2. The Applicant specified that references to the Prince of Wales should include any of his other titles (such as the Duke of Cornwall), his principal private secretaries, his assistant private secretaries and any other member of staff in his private office and the Royal Household who was able to correspond and communicate on his behalf. 

3. The Applicant also specified that any reference to Nicola Surgeon should be taken to mean Ms Sturgeon herself, any principal private secretaries, any other assistants and private secretaries, and anyone in her private office able to correspond and communicate on her behalf.

4. Full details of the Applicant’s request are reproduced below: 

5. Can you provide a full list of those present at the meeting on 23 June 2015.

6. Does the Scottish Government hold an appointment diary or similar which Ms Sturgeon (and or her private office) used at the time? Please note that I am only interested in that diary(s) which lists Ms Sturgeon’s appointments and commitments. If the answer is yes, can you provide a copy of the entry which relates to 23 June 2015.  I am interested in the entire entry for that day.  This will include the aforementioned meeting as well as any other events held on that day. 

7. Did the meeting include discussions of any of the following issues or subjects?  If the answer is yes, can you please specify which topics or issues were discussed. If the Scottish government holds an agenda for the meeting (whether it is a formal or informal agenda – and irrespective of when it was produced) can you please provide a copy of that agenda. Please feel free to redact anything which is not included on the list below. 

1. Dumfries House and the surrounding area.

2. Development known as Knockroon.

3. Scottish independence and the implications of independence for the environment and the fight against climate change.

4. Climate change including the challenges posted by climate change and or possible solutions to the problem of climate change.

5. Organic food production.

6. Duchy of Cornwall and Duke of Rothesay’s land holdings in Scotland.

7. Hunting on land in Scotland.

8. Palace of Holyrood.

9.  

10. Within three months of the meeting taking place, did Ms Sturgeon write to and or communicate with the Prince of Wales about the meeting and or the specific issues which were discussed at the meeting?  If the answer is yes, can you please provide copies of this written correspondence and communication. 
    
     

11. Within three months of the meeting taking place, did the Prince of Wales write to and or communicate with Ms Sturgeon about the meeting and or the specific issues which were discussed at the meeting?  If the answer is yes, can you please provide copies of this written correspondence and communication.

12.  

13. If information relevant to points (a) to (e) of this request has been destroyed, can you please provide the following details.  Please include details of information destroyed at the time and please include details of information destroyed more recently. 
    
     

14. Can you identify exactly which information has been destroyed and why.  In the case of each destroyed document can you state when it was destroyed.

15. In the case of each piece of destroyed correspondence and communications can you please provide details of author(s), recipient(s) and date generated

16. If destroyed documentation of any kind continues to be held in another form, can you please provide copies of that destroyed information. 

17.  

18. The Authority responded on 22 June 2022 and informed the Applicant that it was processing the request under the EIRs, as it was seeking environmental information.  In response to request a) the Authority confirmed that the meeting took place, but it stated that it did not hold any information about other individuals who may have been present.  In response to request b) the Authority stated that it no longer held a copy of the diary for 23 June 2015, but it provided the Applicant with a weblink to information about Ministerial engagements from June 2015. The Authority also notified the Applicant that it was withholding this information under regulation 6(1)(b) of the EIRs (as it was already publicly available).   In response to request c) the Authority disclosed some information, but it redacted personal data under regulation 11(2) of the EIRs.  The Authority notified the Applicant, under regulation 10(4)(a) of the EIRs, that it did not hold any information falling within the scope of requests d), e) and f).
19. On 22 June 2022, the Applicant wrote to the Authority requesting a review of its decision. The Applicant stated that he was dissatisfied with the decision because he considered that the Authority held more information than that disclosed.  He asked the Authority to look at the request again, in its entirety.
20. The Authority notified the Applicant of the outcome of its review on 4 July 2022.  It upheld its original response to requests a), c), d), e) and f), but modified its response to request b), stating that it now considered that it should have applied regulation 10(4)(a) to the request as the diary was no longer held.
21. On 12 September 2024, 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 he was dissatisfied with the outcome of the Authority’s review because he expected the Authority to hold more information about a meeting between the First Minister and the heir to the throne.

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 1 November 2022, and in line with section 49(3)(a) of FOISA, the Commissioner gave the Authority notice in writing of the application and invited its comments.
8. The Authority provided its comments, and the case was subsequently allocated to an investigating officer. 
   
    

Commissioner’s analysis and findings

9. The Commissioner has considered the submissions made by the Applicant and the Authority. 

EIRs or FOISA?

10. The Authority considered the Applicant's request under the EIRs, having concluded that the information requested was environmental information as defined in regulation 2(1) of the EIRs.
11. The information requested appears to fall clearly within the scope of the definition of environmental information contained in regulation 2(1) of the EIRs (in particular paragraphs (a), (b) and (c) of the definition).
12. The Applicant has not disputed the Authority’s decision to handle his request under the EIRs and the Commissioner is satisfied, in the circumstances, that the information requested falls within the definition of environmental information in regulation 2(1).

Section 39(2) - Environmental information

13. 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.
14. In this case, therefore, the Commissioner accepts that the Authority was entitled to apply the exemption in section 39(2) of FOISA, given his conclusion that the information requested is properly considered to be 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.
16. 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.
17. 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) – Duty to make environmental information available

18. 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.
19. 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)).
20. Under the EIRs, a Scottish public authority may refuse to make environmental information available if one or more of the exceptions in regulation 10 applies.
    
     

Authority’s change of position during the investigation

21. During the investigation, the Authority submitted that it was now applying regulation 10(4)(a) of the EIRs to requests a) and b). It acknowledged that while it had previously informed the Applicant that it was unable to provide a list of attendees for request a), it had failed to notify him that that it was applying 10(4)(a) to this request.
22. In relation to request b), the Authority noted that it had applied regulation 6(1)(b) to this request, on the basis that Ministerial engagements were published on its website.  However, having considered the published information further, the Authority conceded that it did not provide the specific information asked for in request b) and it withdrew its reliance on this regulation. The Authority confirmed that it did not hold a copy of Ms Sturgeon’s diary, and it applied regulation 10(4)(a) to request b).
23. The Authority clarified that it was now refusing requests a), b), d), e) and f) under regulation 10(4)(a) of the EIRs.
24. The Authority also confirmed that it was no longer seeking to rely on regulation 11(2) for information sought in request c).  It acknowledged that no personal data was actually withheld from the Applicant in its review outcome, and the exception was applied in error.  The Authority issued a clarification to the Applicant on this point. 

Regulation 10(4)(a) – Information not held

25. Regulation 10(4)(a) of the EIRs states that a Scottish public authority may refuse to make information available to the extent that it does not hold the information when it receives the request.
26. The standard of proof to determine whether a Scottish public authority holds the information is the civil standard of the balance of probabilities.  In determining where the balance of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
27. The Commissioner also considers, where appropriate, any reasons offered by the public authority to explain why it does not hold the information.  While it may be relevant as part of this exercise to explore expectations about what information the authority should hold, ultimately the Commissioner’s role is to determine what relevant information is (or was, at the time the request was received) held by the public authority.
28. The Authority has argued that it does not hold any information falling within the scope of requests a), b), d), e) and f), and it has applied regulation 10(4)(a) to these requests.

Applicant’s comments

29. The Applicant commented that he was concerned by the lack of information disclosed by the Authority.  He considered that the Authority should hold more information regarding a meeting between the First Minister and the heir to the throne.

Authority’s comments

30. The Authority provided the Commissioner with details of the searches it had carried out to determine whether, or not, information was held.  It explained that it had searched its electronic filing system, the eRDM, and that it considered that if information was held, it was likely held in one of two folders: Communications with the Royal Household, and Briefings for the First Minister.
31. The Authority explained that information relating to the Royal Family, including funeral plans, honours nominations, visits, and meetings were sensitive and access to this information was limited to members of the Protocol and Honours team, and others with a need to access for a specific purpose.  It submitted that as the files were restricted, and could only be accessed by limited individuals, both folders were the only place where records of this meeting would have been held, on account of the sensitivity of matters relating to the Royal Family.
32. The Authority submitted that during the investigation, its case handler reviewed each item in these two folders to determine if they fell within the scope of the request.
33. In addition, the Authority explained that it also interrogated these records by keyword, using the terms “Prince of Wales” and “Duke of Rothesay”.  The timeframe for these searches was extended to both before and after the date of the meeting but the Authority submitted that no additional information was located.
34. The Authority provided the Commissioner with screenshots of the searches it had carried out.  The Authority explained that eight individuals were asked to carry out inbox searches for relevant information, and it provided the Commissioner with the names and job titles of these individuals.  It noted that these individuals included those working in the First Minister’s office and those who would have covered the briefing for the suggested agenda.
35. Following these inbox searches, the Authority submitted that one briefing document was returned (in addition to the “proposed agenda” which it had already disclosed to the Applicant).  It maintained that no other information was retrieved, and it argued that the identified briefing did not fall within the scope of the request as it was produced ahead of the meeting and was not a record of what was discussed at the meeting, which was the subject of the request.  The Authority submitted that if the Commissioner considered the briefing did fall within the scope of the request, it would like the opportunity to comment further.
36. The Authority was asked how it was able to state, in response to request a), that the Prince of Wales and Ms Sturgeon were present at the meeting, but it did not hold any information or knowledge about any other persons that might have attended it.   The Authority explained that the Prince of Wales and other members of the Royal Family can invite the First Minister to what is referred to by the Royal Household as a “Private Audience”, which means there would only be two people there: Ms Sturgeon and the Prince of Wales.  However, the Authority submitted that it was possible that the Prince of Wales invited his private secretary or someone else in, during the meeting.
37. The Authority commented that taking into account the list of diary engagements that were published and the content of the briefing note (that it considered to be out of scope) produced before the meeting took place, it was reasonable to conclude that a meeting between both parties had taken place as a “Private Audience”, but it had no knowledge of any other attendees as no minutes or records were produced.

The Commissioner’s view

38. Having considered the evidence of searches the Authority provided during his investigation, along with its comments and explanations, the Commissioner is satisfied that the searches carried out were reasonable and proportionate.  He notes that the Prince of Wales is known as the “Duke of Rothesay” when present in Scotland, and use of that title as a search term is reasonable.  The Commissioner is satisfied that the Authority searched the right locations, that the searches covered the correct timeframe, that it used reasonable search terms and that relevant individuals conducted the searches.
39. The Commissioner has considered the content of the briefing note identified by the Authority during the investigation, and he is satisfied that it does not fall within the scope of requests a), b), d), e) or f).
40. On balance, the Commissioner is satisfied that the Authority does not hold recorded information falling under the scope of requests a), b), d), e) and f) of the Applicant’s request.  
41. The Commissioner therefore concludes that the Authority was entitled to rely on the exception in regulation 10(4)(a) of the EIRs in relation to requests a), b), d), e) and f) of the Applicant’s request, on the basis that it did not hold the information requested.

The public interest

42. The exception in regulation 10(4)(a) of the EIRs is subject to the public interest test in regulation 10(1)(b) and so can only apply if, in all the circumstances of the case, the public interest in maintaining the exception outweighs that in making the information available.  
43. The question of whether a public authority holds information is a factual one, determined on the balance of probabilities.  If a public authority does not hold the information, then there is no meaningful public interest test that can be undertaken.
44. In this case, for the reasons set out above, the Commissioner is satisfied that the Authority does not hold any information covered by the request, and did not do so on receipt of the request.  Consequently, he accepts that there is no conceivable public interest in requiring the disclosure of such information and finds that the public interest in making information available is outweighed by that in maintaining the exception.

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

45. 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.  This obligation relates to information that is held by the authority when it receives a request.
46. On receipt of a request for environmental information, therefore, the authority must ascertain what information it holds falling within the scope of the request.  Having done so, regulation 5(1) of the EIRs requires the authority to provide that information to the requester, unless a qualification in regulations 6 to 12 applies (regulation 5(2)(b)).  Regulation 5(1) of the EIRs – Duty to make environmental information available
47. 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.  This obligation relates to information that is held by the authority when it receives a request.

Request c)

48. As noted above, in request c), the Applicant asked if the meeting (between Ms Sturgeon and the Prince of Wales on 23 June 2015) included discussions of a list of specified topics.  He stated that if the answer was yes, the Authority should confirm which topics or issues were discussed.  As part of request c), the Applicant also stated that if the Authority held an agenda for the meeting (whether it was a formal or informal agenda – and irrespective of when it was produced) it should provide him with a copy of that agenda.
49. During his investigation, the Authority referred to a briefing document that was unearthed in its searches of its corporate records.  
    
    
    The Authority claimed that this briefing note did not fall within scope of the request as it was produced ahead of the meeting and was not a record of what was discussed at the meeting, which – the Authority stated – was the subject of the request.
50. The Authority did not apply any exception to this briefing note but (as outlined above) asked that if the Commissioner considered it to be within scope, it should be given the opportunity to comment further.
51. The Commissioner has considered the content of the briefing document identified by the Authority during its searches and considered out of scope of the request.  He notes that the briefing document lists the topics to be discussed at the meeting (as an agenda would) and it provides additional comment/background information for each topic.  The Commissioner is satisfied that large parts of the briefing document fall within the scope of the request, as they cover the issues listed by the Applicant in request c).
52. As referenced above, in its submissions to the Commissioner, the Authority commented that if the Commissioner found the briefing document to fall within the scope of request c) it would like the opportunity to comment further.
53. The Commissioner has already explained that 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 Commissioner would remind the Authority that section 49(3)(a) of FOISA only requires him to notify an authority that an application has been received and to invite the authority’s comments.  It does not require him to continually revert to the authority if he disagrees with the authority’s approach.  In this case, the Commissioner requested the Authority’s comments on two separate occasions. The Commissioner made it clear, in his correspondence with the Authority, that it should not expect to have multiple opportunities to make submissions.  In the investigating officer’s letter, seeking further information from the Authority, it was advised;
    
    “This is your opportunity to provide further comments in support of your position and the Commissioner will issue a decision based on these.  The decision may require the further disclosure of any withheld information. Please prepare your comments with this in mind.“
54. The Commissioner is satisfied that the Authority knew there was a chance that he may consider the briefing document to be within scope (hence its request to be consulted further) and given this, he considers that the Authority should have addressed these concerns in its submissions, and applied any exception it considered to be relevant.
55. In the circumstances, the Commissioner finds that the Authority’s review outcome failed to identify all of the information captured by the Applicant’s information request.  He therefore finds that the Authority failed to comply with regulation 5(1) of the EIRs and, in doing so, it provided an incomplete response to the Applicant’s request.
56. As no exception has been applied to any part of the briefing that the Authority deemed to be out of scope, the Commissioner requires the Authority to disclose the information contained within the briefing document that matches up with the topics specified by the Applicant in request c), ensuring that personal data is redacted, where required.
57. The Commissioner will provide the Authority with a marked-up copy of the briefing to identify the information that he requires to be disclosed.

Decision 

The Commissioner finds that the Authority partially complied with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the Applicant.

The Commissioner finds that by relying on regulation 10(4)(a) in respect of requests a), b), d), e) and f), the Authority complied with the EIRs.

However, by failing to identify and disclose all of the information falling within the scope of request c), the Commissioner finds that the Authority failed to comply with regulation 5(1) of the EIRs. 

The Commissioner requires the Authority to disclose those parts of the briefing document that he considers to fall within the scope of request c) by 15 May 2025.

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.

Euan McCulloch
Head of Enforcement

31 March 2025