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

Guidance on applying regulation 10(4)(a) of the EIRs

Regulation 10(4)(a) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows public authorities to refuse to make environmental information available if they don't hold the information when the request is received.

"Held" is defined in regulation 2(2) of the EIRs. Environmental information is held by a Scottish public authority if it is:

  • in its possession and it has been produced or received by that authority; or
  • held by another person on that authority's behalf.

Regulation 2(2) also makes it clear that information will not be "held" by a public authority for the purposes of the EIRs if it was supplied by a Minister of the Crown or department of the UK Government and is held in confidence.

In common with other exceptions in the EIRs, the exception is subject to the public interest test in regulation 10(1). It is not clear how the public interest test is intended to work where a public authority does not hold information, given that authorities are not required to create new information in order to respond to a request. This point is addressed in more detail below.

Good records management is required in order to be sure what information is held within an authority.

Regulation 10(4)(a) is, in many respects, similar to Section 17 of the Freedom of Information (Scotland) Act 2002 (FOISA) which makes it clear that a public authority does not have to comply with a request if it does not hold the information. The briefing also provides links to a wider range of decisions on whether information is - or isn't - held by a public authority.

Download the briefing

EIR Briefing - Regulation 10(4)(a): Information not held

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