Publication - FOI/EIR release

Communications regarding James Hutton Institute in relation to the Evidence Review: EIR release

Published: 30 January 2024
Directorate: Environment and Forestry Directorate
Topic: Public sector
FOI reference: 202200322513
Date received: 27 September 2022
Date responded: 2 November 2022

Information request and response under the Environmental Information (Scotland) Regulations 2004.

Information requested

A complete copy of the instructions given to the James Hutton Institute in relation to the Evidence Review, (ii) any and all internal communications on the selection of the James Hutton Institute to carry out the Evidence Review, (iii) any and all internal communications explaining why review of evidence into oxo-biodegradable plastic products was required and the scope of any instruction and (iv) all correspondence between the Scottish Government and the James Hutton Institute pertaining to the Evidence Review.

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.

Response

I enclose a copy of most of the information you requested. 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:

an exception under regulation 11(2) of the EIRs applies to that information (personal data relating to a third party).
an exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information requested for request (iii) because it is internal legal advice and disclosure would breach legal professional privilege. 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, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation. The release of the content of such legal advice is likely to be appropriate only in highly compelling cases. This has been recognised by both the Scottish Information Commissioner and the courts - see, for example, the House of Lords case, Three Rivers District Council and others v Governor and Company of the Bank of England (2004) UKHL 48.
an exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information requested for request (iii) because it is internal communication between Scottish Government officials regarding Article 5 requirements of the EU Single Use Plastics Directive. 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 some public interest in release as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on Article 5 requirements of the EU Single Use Plastics Directive will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.
an exception under regulation Reg 10(5)(e) applies to information of a confidential, commercial or industrial nature. 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, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of organisations which tender for Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

The response includes the following information:

Annex A is a complete copy of the instructions given to the James Hutton Institute in relation to the Evidence Review (request i), subject to the exception under regulation 11(2) noted above;
Annex B is any and all internal communications on the selection of the James Hutton Institute to carry out the Evidence Review (request ii), subject to the exception under regulation 11(2) noted above;
Annex C is any and all internal communications explaining why review of evidence into oxobiodegradable plastic products was required and the scope of any instruction (request iii) subject to the exceptions under regulations regulation 11(2) and 10(4)(e) noted above; and
Annex D is all correspondence between the Scottish Government and the James Hutton Institute pertaining to the Evidence Review (request iv), subject to the exceptions under regulations 11(2) and 10(5)(e) and noted above.

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