Perth and Kinross Planning Application 16/02156/AMM: EIR release
Information request and response under the Environmental Information (Scotland) Regulations 2004.
FOI reference: FOI/18/00336
Date received: 5 February 2018
Date responded: 5 March 2018
Information requested
I am writing to request information under the Freedom of Information (Scotland) Act. In order to assist you with this request, I am outlining my query as specifically as possible.
I would like to request copies of all emails and other correspondence between Transport Scotland and the Scottish Government relating to Perth and Kinross Council planning application 16/02156/AMM - erection of 159 dwellinghouses with associated roads, drainage and landscaping at land to the north of the A912 at Oudenarde, Bridge of Earn - between October 1, 2017 and February 1, 2018.
Response
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.
Please see attached Annex A which is copies of all emails and other correspondence between Transport Scotland and the Scottish Government relating to Perth and Kinross Council planning application 16/02156/AMM.
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 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.
There is a vital public interest in ensuring that the Government is able to defend its legal interests. Disclosure of legal advice has a significant potential to prejudice that ability – both directly, by unfairly exposing its legal position to challenge, and indirectly, by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour. The former could result in serious consequential loss, or at least in a waste of resources in defending unnecessary legal challenges. The latter may result in poorer decision-making because the decisions themselves may not be taken on a fully informed basis.
We have also applied regulation 10(4)(e) of the EIRs (internal communications) to some of the information you have requested because it is internal communication between Scottish Government officials regarding a brief to the First Minister about the Oudenarde project.
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.
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.
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