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

When a Scottish public authority does not hold the environmental information you have requested.

Information not held#

Regulation 10(4)(a) of the EIR(S) allows an authority to refuse your request if it does not hold the information at the time it receives your request. This is the most basic of the exceptions - the authority is saying the information you asked for does not exist in its records.

In plain terms#

The authority has looked and says it doesn’t have what you asked for. That might be true. Or it might mean they haven’t looked hard enough.

You ask a council for monitoring data on air quality near a new housing development. The council says it doesn’t hold the data. But you know from a planning committee report that air quality monitoring was a condition of the planning permission - so the data should exist somewhere.

The legal detail#

Regulation 10(4)(a) applies where the authority does not hold the information when the request is received. “Held” is defined in regulation 2(2): environmental information is held by an authority if it is in its possession and has been produced or received by the authority, or if another person holds it on the authority’s behalf. A document stored with a commercial storage company or held by a solicitor acting for the authority is still “held” by the authority.

Information supplied by a UK Government minister or department and held in confidence is not treated as “held” for EIR(S) purposes.

This is a class exception. It applies based on whether the authority holds the information, not on whether disclosure would cause harm.

The public interest test#

Like all EIR(S) exceptions, this one is formally subject to the public interest test in regulation 10(1). In practice, it is hard to see how the public interest could require an authority to disclose information it genuinely does not hold. The Commissioner has acknowledged this tension. The real question is usually whether the authority does hold the information - and that is a question of fact, not of balancing interests.

The authority must still interpret the exception restrictively and apply the presumption in favour of disclosure (regulation 10(2)). See What can they refuse? for more on the public interest test.

How it’s used in practice#

This exception comes up often in environmental requests because the information may be spread across several bodies. Planning records sit with the council, but environmental monitoring data might be held by SEPA, and emissions data by the operator under a permit. When an authority says it doesn’t hold something, it doesn’t mean the information doesn’t exist - it means you may need to ask elsewhere.

The authority must search properly. The Commissioner expects adequate and proportionate searches covering all relevant formats - emails, WhatsApp messages, handwritten notes, and file notes, not just the obvious databases and filing systems. Information generated in a private email account still counts as “held” if it relates to the authority’s business.

If the authority does not hold the information but believes another Scottish public authority does, it may advise you to make a new request to that authority, or tell you who to contact.

How to challenge it#

If you believe the information exists, say so in your review request. Point to any evidence: references in published documents, committee reports, or correspondence you’ve already received. Ask the authority to explain what searches it carried out, who it asked, and what systems it checked.

The Commissioner regularly finds that authorities have not searched thoroughly enough. Poor records management is not a valid excuse for claiming information is not held.

See What to do if refused for the full review and appeal process.

You can also use our interactive challenge tool for this exception to work through these questions step by step and draft a review request.

Good to know: Information can be “held” simultaneously by an authority in its own right and on behalf of another person. The test is whether the information has an appropriate connection to the authority and its functions. Under FOISA, the equivalent provision is section 17, which works in much the same way but is not formally subject to a public interest test.