Response

As the information you have requested is 'environmental information' for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

Most of the information you requested is provided with this letter.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exceptions under regulation 10(4)(e) (internal communications) and regulation 11(2) (personal data) of the EIRs apply to that information. The reasons why these exceptions apply are explained below.This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

Explanation of Exceptions

An exception under regulation 11(2) of EIRs (personal data) applies to a small amount of the information requested because it is personal data of a third party, i.e. names/contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

An exception under regulation10(4)(e) of the EIRs applies to some of the information you have requested. Regulation 10(4)(e) allows a Scottish public authority to withhold internal communications. This exception also applies to communications which record discussions with third parties, or which contain information received from third parties, provided it is then communicated internally.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s policy position until the Government as a whole can adopt a policy that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence. Disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual’s contribution was released against their wishes. Disclosing the content of these discussions will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public. This would significantly harm the Scottish Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence needed to make fully informed policies/decisions.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

EIR 202500446798 - Information released - Annex

Contact

Please quote the FOI reference
Central Correspondence Unit
Email: contactus@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

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