Correspondence relating to the Crown Estate : FOI release

FOI reference: FOI/17/01771
Date received: 1 August 2017
Date responded: 30 August 2017

Information requested

You asked for the content of all correspondence between Scottish Government and UK Government, and Scottish Government and Royal Family, relating to the Crown Estate within the last 12 months.

Response

I enclose a copy of some of the information which 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 exemptions under sections 28(1) (relations within the UK); 29(1)(a) (development of government policy); 36(1) (confidentiality in legal proceedings); 38 (personal information); and 41(a) (communications with Her Majesty, the Royal Family or the Royal Household) of FOISA applies to that information. The reasons why that exemption(s) applies are explained below.

Reasons for not providing information

Exemptions apply, subject to the public interest test:

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. The release of these communications about the Crown Estate in Scotland will mean that the UK Government is likely to be more reluctant to share such information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations.

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. 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 maintaining good relations between the Scottish Government and the UK Government, and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, such as the Crown Estate. There is no public interest in disclosing information when that will damage relationships and disrupt future communications as that may impact on the effectiveness of future policy development and implementation work.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government's policy on devolution and reform of the management of the Crown Estate assets in Scotland.

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. 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 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 the Crown Estate in Scotland 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 exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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. We recognise that there is some public interest in release as part of open and transparent 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.

An exemption under section 41(a) of FOISA (communications with Her Majesty, the Royal Family or the Royal Household) applies to some of the information requested because it relates to communications with the Royal Household.

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. We recognise that there is some public interest in release as part of open and transparent government. However, this is outweighed by the greater public interest in protecting a channel of communication between the Scottish Government, and the Royal Household. Disclosing the content of such communications, particularly against the wishes of the Royal Household, is likely to mean that such future communications will be less open and less frequent, with less exchange of information on matters of mutual interest, which would not be in the public interest.

An exemption applies:

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party i.e. names of individuals, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.

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FOI17-01771 - 30 August 2017-email correspondence.pdf

File type

5 page PDF

File size

151.8 kB