Mr Antony Jack and City of Edinburgh Council

Factual and Procedural Background

On 4 July 2018, the Plaintiff submitted wide-ranging requests for financial and contractual information related to the development of the St James Quarter to the Defendant, a Scottish public authority. The Defendant initially processed parts of the requests under section 101 of the Local Government (Scotland) Act 1973, which permits inspection of local authority accounts, and responded accordingly on 13 and 19 July 2018. The remaining aspects of the requests, falling outside the scope of section 101, were handled under the Environmental Information (Scotland) Regulations 2004 (EIRs). The Defendant later refused to comply with these latter requests, deeming them manifestly unreasonable under regulation 10(4)(b) of the EIRs, citing the excessive time and resources required to process them.

The Plaintiff sought a review of the Defendant's handling of the requests, disputing the characterization of the requests as manifestly unreasonable and expressing dissatisfaction with the response times. Following the Defendant's review outcome, the Plaintiff applied to the Commissioner for a decision under the Freedom of Information (Scotland) Act 2002 (FOISA), as modified by the EIRs.

The Commissioner conducted an investigation, including inviting the Defendant to comment on its reliance on regulation 10(4)(b), the handling of the requests, and the response times. The Commissioner considered submissions from both parties before reaching a decision.

Legal Issues Presented

1. Whether the Defendant was entitled to refuse to comply with parts of the Plaintiff's information requests on the basis that they were manifestly unreasonable under regulation 10(4)(b) of the Environmental Information (Scotland) Regulations 2004.
2. Whether the Defendant complied with its obligations under the EIRs to provide advice and assistance to the Plaintiff pursuant to regulation 9(1).
3. Whether the Defendant complied with the statutory timescales for responding to environmental information requests as set out in regulations 5(2)(a) and 13(a) of the EIRs.

Arguments of the Parties

Defendant's Arguments

• The Defendant argued that complying with the Plaintiff’s requests would impose a significant burden, estimating approximately 200 hours of officer time to locate, retrieve, collate, and redact information, including at least 2,400 emails.
• It asserted that processing the requests would detract from its ability to perform statutory functions and was therefore manifestly unreasonable.
• The Defendant acknowledged delays in responding due to initially processing the requests consecutively—first under section 101, then under the EIRs—and admitted it should have extended the response timeframe and engaged more proactively with the Plaintiff.
• The Defendant recognized it failed to provide adequate advice and assistance to help the Plaintiff narrow the scope of the requests and failed to direct the Plaintiff to information already publicly available on its disclosure log.
• It contended that existing mechanisms, such as committee reports and councillor oversight, provided public scrutiny of the development, mitigating the need for extensive disclosure under the requests.

Plaintiff's Arguments

• The Plaintiff contended the Defendant did not challenge the formulation of the requests nor seek an extension of time, which denied the Plaintiff an opportunity to seek a review sooner.
• The Plaintiff disputed the Defendant’s characterization of the requests as manifestly unreasonable and expressed dissatisfaction with the handling and timing of responses.
• The Plaintiff highlighted a prior similar request on the Defendant’s disclosure log that had resulted in some information being released, suggesting some of the requested information was accessible.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Commissioner analysed the Defendant’s reliance on regulation 10(4)(b) of the EIRs, which permits refusal of requests that are manifestly unreasonable. The Commissioner noted that this exception must be interpreted restrictively with a presumption in favor of disclosure, and that the public interest test under regulation 10(1)(b) applies.

The Commissioner accepted the Defendant’s evidence that complying with the requests would require significant resources—estimated at 200 hours of staff time—due to the wide-ranging nature and volume of information sought. The Commissioner considered relevant factors such as burden, scope, and purpose of the requests and found the requests to be manifestly unreasonable.

In balancing the public interest, the Commissioner acknowledged the importance of transparency regarding a major development but also recognized the strong public interest in enabling the Defendant to carry out its statutory duties without undue disruption. The Commissioner concluded the public interest in maintaining the exception outweighed that in disclosure in this case.

However, the Commissioner identified procedural failings by the Defendant in handling the requests. The Defendant failed to comply with the statutory timescales for responding under regulations 5(2)(a) and 13(a) of the EIRs, primarily due to processing the requests consecutively and not extending the timeframe appropriately.

Moreover, the Defendant failed in its duty under regulation 9(1) to provide reasonable advice and assistance to the Plaintiff to help narrow the requests’ scope and did not direct the Plaintiff to relevant information already publicly available. These procedural shortcomings were found to be breaches of the EIRs.

Holding and Implications

The Commissioner’s final decision was to uphold the Defendant’s refusal to comply with parts of the Plaintiff’s requests under regulation 10(4)(b) on the basis that they were manifestly unreasonable. The Defendant was entitled to withhold the requested information.

However, the Commissioner found that the Defendant failed to meet its obligations under regulations 5(2)(a), 9(1), and 13(a) of the EIRs related to response times and provision of advice and assistance. Accordingly, the Commissioner required the Defendant to provide advice and assistance to the Plaintiff to help narrow the scope of the requests and to enable the Plaintiff to make fresh, more manageable requests by 8 July 2019.

No new legal precedent was established. The decision clarifies the application of regulation 10(4)(b) in the context of wide-ranging requests and underscores the importance of procedural compliance, particularly the duty to assist applicants and adhere to response times under the EIRs.