- All internal correspondence between the Scottish Government and Ernst & Young LLP around the Just Transition Review of the Scottish Energy Sector awarded to the firm earlier this year.
- All copies of the contract, specification of work, agreement, or further details about the work being undertaken by Ernst & Young LLP under this contract
I have concluded that a different decision should be substituted. On review, I have concluded that your request is for environmental information as defined at section 2 of the Environmental Information (Scotland) Regulations 2004 (the EIRs). Therefore, your request should have been handled under these Regulations rather than under FOISA.
I am now formally applying the exemption at section 39(2) of FOISA so that I can deal with this review under the EIRs and do not also have to deal with it 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.
In addition to expressing dissatisfaction with the application of exemptions, which I will address below, your request for a review also referenced the fact that it was not possible to determine from the response you received which exemptions had been applied where. I agree that this would have been helpful and will feed this back to the case handler as well as raising the issue more widely. You also expressed dissatisfaction about redaction of bodies of text within documents released to you. I have reviewed the information covered by your request on a line by line basis and applied any exceptions restrictively and with a strong presumption in favour of release.
In reaching my decisions I reviewed the material supporting your initial request and considered the response you were given in light of your letter seeking a review. Before coming to a view I also spoke to individual officers involved in handling your initial request and sought professional advice from procurement colleagues on aspects of the case related to their specialism. I considered where the exemptions had been applied and reviewed the material with reference to equivalent provisions under the EIRs where they exist. Where no equivalent exception under the EIRs exists I considered your request with reference to the guidance on EIRs published by the Scottish Information Commissioner. Finally, where appropriate I applied the Public Interest test before making a final decision in each individual instance. My findings are as follows:
Where personal data was withheld under s38(1)(b) of FOISA I have continued to withhold such information under regulation 11(2) (personal data) of the EIRs. The reasons why this exception applies are set out in Annex A. There are some occasions where I have concluded that information originally withheld under s38(1)(b) was not personal data, and I have released information where possible.
In respect of copies of emails previously released to you
On review, I concluded that, throughout, no exception under the EIRs applies to some of the information previously withheld under FOISA s29(1)(a) and/or s33(1)(b), so that has been released to you.
In the discovery stage of my review, I identified two emails which should have been considered at the request stage. While we try to provide information wherever possible, in this case I am withholding some if the information in these emails under the exception at regulation 10(5)(e) of the EIRS, more detail on which is set out in Annex. A
Contract issued to EY 22.10.21 - pages 21 onward in the material previously released to you
I have reconsidered this with reference to the EIRs. On review I have concluded that the exception under EIR 10(5)(e) (substantial prejudice to the confidentiality of commercial information) applies to some of the information previously withheld, for the reasons set out in Annex A. However, I also found that some of the information previously withheld is not subject to the exception and so that information has been released to you.
The dates of the Contract (pages 21 and 25 of the material previously released to you) were also withheld. On review, I did not find that the arguments that applied in reaching a view on withholding substantive material relating to the contract also supported withholding information about dates, and so that information has been released to you.
Finally, I apologise for the delay in responding to your review request, due to circumstances beyond my control.
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.
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Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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