Category: Scottish EIRs

When ‘Unreasonable’ Doesn’t Cut It: SIC Requires a Response to a Manifestly Unreasonable Request

July 18th, 2025
I rarely cover decisions from either the Information Commissioner or the Scottish Information Commissioner in relation to FOI/EIR matters on this blog. However, I want to look at an interesting decision of the Scottish Information Commissioner from May which, I think, acutely highlights some of the major differences between the Freedom of Information (Scotland) Act 2002 (“FOISA”) and the Environmental Information (Scotland) Regulations 2004 (“Scottish EIRs”)

Decision 132/2025 of the Scottish Information Commissioner concerned a request for information to Scottish Forestry about a scheme known as the Stobo Hope Woodland Creation Scheme. Scottish Forestry had responded to most of the request, but refused to comply with the last part of the request citing the exception at Regulation 10(4)(b) of the Scottish EIRs – that the request was manifestly unreasonable. The exception in Regulation 10(4)(b) is broadly the equivalent of the vexatious requests provision in FOISA. However, unlike the provision in FOISA concerning vexatious requests, the manifestly unreasonable exception in the Scottish EIRs is subject to the public interest test.

Decision 132/2025 is an example of how that difference between the two pieces of legislation can result in a materially different outcome. In this case, the Commissioner agreed that the request was manifestly unreasonable; however, went on to decide that the public interest in the information outweighed the public interest in maintaining the exception. Scottish Forestry was therefore required to respond to the request despite it being manifestly unreasonable.

Reading the decision, it is fair to say, I think, that the Commissioner was not at all impressed with the approach taken to the question of the public interest by Scottish Forestry. The decision states that “the Authority has taken a cursory and casual approach to the public interest in its review and in its submissions to [the Commissioner].” [59] The decision goes on to state that “[t]he very existence of the public interest test in relation to this exception suggests that a real demand on public resources will not necessarily be the sole, or even the primary, determining consideration.” [59] The decision continues, at [60]:

“Here, while the Authority has acknowledged the particular public interest in woodland creation schemes and their impact, it does not appear to have gone beyond that to address the particular facts and circumstances of the scheme to which the request under consideration here relates: it is important that any analysis of the public interest, whatever the exception, is specific to the circumstances and not unduly generic.”

Earlier in the decision, reference is made to the Aarhus Convention Implementation Guide and states that the guide “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.” [43]

The genesis of the Scottish EIRs (like the Environmental Information Regulations 2004, which apply to public authorities that are not “Scottish public authorities”) is very different to that of FOISA; they implement an EU Directive which required to be implemented when the United Kingdom was a member of the European Union. That Directive itself implemented an international convention known as the Aarhus Convention (hence the reference to the Aarhus Convention Implementation Guide in the decision), to which the United Kingdom is a signatory in its own right.

The Aarhus Convention is designed to guarantee the rights of access to information in relation to environmental matters as well as public participation in decision-making and access to justice in environmental matters. Access to information is of importance in ensuring that there can be public participation in decision-making and also access to justice in environmental matters.

The Scottish EIRs provide for a right of access to information held by Scottish public authorities in relation to the environment and the definition of “environmental information” is wide (it can catch some rather surprising information). Scotland could do a lot more on the access to justice front in relation to environmental matters, but that is outwith the scope of this post.

It is definitely worth remembering, whether you are a public authority or requester, that the Scottish EIRs are manifestly different from FOISA in many important respects, including:
- there are no absolute exceptions in the Scottish EIRs – all exceptions are subject to the public interest test (Regulation 10(1)) [personal data is dealt with separately from the exceptions in Regulations 10(4) and 10(5)];
- there is an explicit presumption in favour of disclosure inbuilt into the Scottish EIRs (Regulation 10(2)(b)); and
- there is a statutory requirement to construe the exceptions narrowly (regulation 10(2)(a)).
Decision 132/2025 is worthwhile reading in full for the approach adopted by the Commissioner. This was the first time in 20 years that the Scottish Information Commissioner has required a public authority to respond to a request that was manifestly unreasonable. So, while exceptionally rare, it is a useful decision on the need to properly and fully consider the public interest when applying exceptions, including the manifestly unreasonable one, and also the fundamental differences that apply when considering requests for environmental information versus non-environmental information.

^{_{Disclaimer: This article is for information purposes only and nothing in it should be taken as constituting legal advice.}}
Registered Social Landlords and the Scottish EIRs

July 7th, 2015

On 2 June 2014 the Scottish Information Commissioner issued a decision notice finding that Dunbritton Housing Association Limited, a Registered Social Landlord (“RSL”), was a Scottish public authority for the purposes of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs). In that decision the Commissioner ordered the Housing Association to conduct an internal review and to respond to the requester accordingly. Dunbritton Housing Association did not appeal that decision to the Court of Session, as was open to it.

It transpires that Dunbritton Housing Association complied with the Commissioner’s decision and conducted an internal review. It released some information and withheld the remainder under Regulations 10(5)(e) and Regulation 11(2) of the Scottish EIRs. The requester made a fresh application to the Commissioner seeking a decision on two matters: (1) whether Dunbritton had identified all of the information falling within the scope of the request; and (2) whether Dunbritton Housing Association was correct to apply the exceptions that it had.

What is interesting is that after not appealing the Commissioner’s decision to the Court of Session and after complying with the Commissioner’s decision by conducting a review and responding to the request, Dunbritton again tried to argue that it was not a Scottish public authority for the purposes of the Scottish EIRs. The Scottish Information Commissioner, once again, decided that it was.

Dubritton referred to the UK Upper Tribunal’s decision in Fish Legal and argued that the control test within both the UK EIRs and the Scottish EIRs was a high one. It contended that although the Scottish Housing Regulator had significant regulatory powers over RSLs like Dunbritton it only utilised those powers where a RSL was failing. It argued that it was therefore not a Scottish public authority for the purposes of the Scottish EIRs.

The Commissioner concluded, correctly, that she is not bound by the UK Upper Tribunal decision and instead looked to the decision of the Court of Justice of the European Union in the Fish Legal case. She determined, for the same reasons as set out in her previous decision that Dunbritton Housing Association is a Scottish public authority for the purposes of the Scottish EIRs.

There are now two decisions of the Scottish Information Commissioner determining that a RSL is a Scottish public authority for the purposes of the Scottish EIRs, albeit involving the same requester and the same RSL. Her decision has expressly been based upon the decision of the Court of Justice of the European Union in one case and in the other was made following that Court issuing its decision. It seems fairly certain that future RSLs that try to argue that they are not Scottish public authorities in applications to the Commissioner will not succeed; although the Commissioner’s decisions are not binding on anyone (including herself), these two decisions begin to show a clear and consistent line of thinking. It is open to Dunbritton to appeal the decision to the Court of Session – whether or not a person is a Scottish public authority is clearly a question of law. It remains to be seen whether Dunbritton does appeal. While an appeal might be successful and create binding case law that RSLs are not Scottish public authorities for the purposes of the Scottish EIRs it could equally go the other way and create binding precedent that states they are. While there is no binding case law it remains possible for Dunbritton or another RSL to convince the Commissioner that she got it wrong in the two previous decisions. At this stage it remains a case of waiting and seeing; Dunbritton have 42 days from the date the decision was intimated to lodge any appeal.

Category: Scottish EIRs

When ‘Unreasonable’ Doesn’t Cut It: SIC Requires a Response to a Manifestly Unreasonable Request

Registered Social Landlords and the Scottish EIRs