- 1 May 2018
FOI reference: FOI/18/01042
Date received: 3 April 2018
Date responded: 1 May 2018
1. We would therefore be grateful if you would provide us with copies of the documentation submitted to you by Aberdeenshire Council, so that we can ensure that our objections were duly considered by Scottish Ministers as required by the Act.
2. Please provide us with a copy of the methodology/evaluation criteria you apply when you receive requests to approve schemes and decide not to call them in even when they contain, as in the case of the Stonehaven scheme, a significant number of unresolved objections.
3. We would presume that some form of internal report would be produced to independently evaluate the merits of the scheme and ensure its compliance with the Flood Risk Management (Scotland) Act 2009. Please provide a copy of the report which was prepared for the Stonehaven scheme, prior to you determining that it wasn't necessary for it to be independently heard by Scottish Ministers.
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.
The answers to your questions are:
1. Some of the information you requested has been attached to the email. Copies of the additional documentation submitted by Aberdeenshire Council are available from:
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.
The local authority notified us of their preliminary decision to confirm the proposed Stonehaven Flood Protection Scheme in April 2016. I understand from your email that you did not submit your objection until after that date and also after the date that Scottish Ministers made their decision not to call in the proposed scheme for their consideration. There is no requirement in the legislation for the local authority to submit late objections to Scottish Ministers.
2. In order to come to a decision as to whether they will or will not consider the proposed scheme Scottish Ministers are required by paragraph 6(3) of Schedule 2 of the Flood Risk Management (Scotland) Act 2009 to have regard to:
(a) the extent of the proposed operations
(b) the likely reduction in flood risk that will result from the completion of those operations,
(c) the nature of the objections made,
(d) the likely effect on the objectors of the scheme being confirmed, and
(e) the extent to which the objectors appear to raise issues of fact.
3. While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exception under regulation 10(4)(e) (internal communications), of the EIRs applies to that information. The reasons why that exception(s) applies are explained below.
Reasons for not providing information
Regulation 10(4)(e) – internal communications.
An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal communication between Scottish Government Ministers and officials giving advice on whether to consider the Stonehaven Flood Protection scheme or to send back to the local authority to hold a hearing.
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 would be affected by their assessment of whether the advice to consider the Stonehaven Flood Protection scheme or to send back to the local authority to hold a hearing would be disclosed in the future, when it may undermine or constrain the Government's view on that decision making process.
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