Cladding Stakeholder Group information: EIR review

Information requested

Documents relating to the Cladding Stakeholder Group (formed in June 2021

1. all monthly agendas and minutes, since the Group was formed
2. the full membership list of the Group, including any historical membership lists where members have left/joined 
3. the terms of reference for the group
4. any documents produced by the Scottish Government for presentation to or discussion with the Group
5. any notes or draft minutes prepared by SG officials following meetings of the group
6. internal SG emails regarding the organisation of meetings of the Group

Response

I would like to start by apologising for the delay in responding to you. I have now completed my review and I have concluded that a new decision should be substituted.

Having considered how the original case was handled I have concluded that the request should have been considered under the EIRs rather than the Freedom of Information (Scotland) Act 2002 (FOISA) as it relates to information concerning the built environment. Therefore, I have reconsidered your request under the EIRs. As a result some additional information is being released which is explained below. Some information is continuing to be withheld and I have set out below the reasons why this information is being withheld.

Firstly, as explained above 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.

I am now able to provide a copy of most of the information that you have requested, including the agenda, papers and minutes of the Cladding Stakeholder Group covering the period from June 2021 to August 2022. The details of the full membership of the group is recorded in the agenda and minutes of the meetings. The terms of reference were provided in our initial response.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore, we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. The reason why that exception applies is that emails which are issued for the purposes of organising the meetings, providing papers and joining instructions are not retained as they do not form part of the official record and saving these would not be of any real value and would potentially lead to a large amount of unnecessary and duplicate information being stored.

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. While we recognise that there may be some public interest in information about the organisation of the Cladding Stakeholder Group, clearly we cannot provide information which we do not hold.

We are also applying an exception under regulation 11(2) of the EIRs (personal information) to the information requested regarding the membership of the group because it is personal data of a third party 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 exception 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 exception. However, the organisations who are represented are being released.

Finally, we are also applying exception under regulation 10(5)(f) of the EIRs (substantial prejudice to interests of person who provided the information) to some of the information you have requested. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the interests of the organisations who provided that information to the Scottish Government. They:

• were not under any legal obligation to give us that information;
• did not supply it in circumstances in which it could, apart from the EIRs, be made available; and
• have not consented to disclosure.

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 and transparent government. However, there is a greater public interest in protecting the interests of anyone, who provides the Scottish Government with information on a confidential basis. Disclosing such information against the express wishes of the stakeholder is likely to undermine their trust in the Government and make them reluctant in future to share information with us on issues such as the impact of decisions on who is responsible for the replacement of Cladding on buildings and the potential impact on owners, tenants and others when it comes to issues such as mortgages and insurance. This would significantly impair the Scottish Government’s ability to develop policies and make decisions on the basis of fully informed advice and evidence. This would not be in the public interest.

About FOI

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

EIR Review - 202200320481 - information released - Annex A

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PDF

File size

686.5 kB

EIR Review - 202200320481 - information released - Annex B

File type

112 page PDF

File size

1.6 MB