- 20 Dec 2017
FOI reference: FOI/17/02717
Date received: 8 November 2017
Date responded: 14 December 2017
Any and all correspondence (written and / or electronic) between Scottish Government ministers / officials and any of Mike Keiser, Kemper Sports, Todd Warnock, Edward Abel Smith or the Embo Trust on the issue of the Coul Links golf development.
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.
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 exceptions under regulations 10(5)(f) (substantial prejudice to interests of person who provided the information) and 11(2) (personal information) of the EIRs applies to that information. The reasons why those exceptions apply are explained below.
Reasons for not providing information
Regulation 10(5)(f) – substantial prejudice to interests of person who provided the information.
An exception under regulation 10(5)(f) of the EIRs (substantial prejudice to interests of person who provided the information) applies 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 Mr Todd Warnock who provided that information to the Scottish Government. He:
was 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
has 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, such as Mr Warnock, who provided 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 pre-application stage discussions on possible proposals for development. 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.
Regulation 11(2) – applicant has asked for personal data of a third party.
An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.
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
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House