Scottish Natural Heritage correspondence: FOI review
Information request and response under the Environmental Information (Scotland) Regulations 2004.
Information requested
In addition to internal Scottish Government records, you asked specifically for any correspondence in this connection between the SG and:
1. the UK Government,
2. Scottish Natural Heritage, and/or
3. any other persons or organisations external to the SG irrespective of whether such parties may or may not have sought to influence the drafting of paragraphs 8 and 9 of Attachment 5.
You provided the following attachments:
1. SG Biodiversity Policy (Ramsar sites and nature reserves) webpage, downloaded 8 January 2019.
2. Ministerial statements to the Parliament - please see S5O-01982 (Chamber OR 18 Apr 2018 cols 6-7), S5W-17981 answered 4 Sep 2018, and Mr Stewart's statement (LGC Cttee OR 31 Oct 2018 col 26 after 10:15 timestamp).
3. Westminster written questions 163204, 165697 and 165698, July 2018.
4. SG Biodiversity Policy (Ramsar sites and nature reserves) webpage, downloaded 23 January 2019.
5. SG guidance "Implementation of Scottish Government policy on protecting Ramsar sites", published 22 January 2019, downloaded 31 January 2019.
Response
Further to my acknowledgment letter of 26 April, I have now completed my review of our failure to respond to your request under the Environmental Information (Scotland) Regulations 2004 (EIRs) for any and all records held by the Scottish Government (including letters, emails, minutes and notes of meetings and telephone conversations, all since and including 23 June 2014) of the process (including any consideration of an invitational and/or public consultation process) leading to the drafting and publication of paragraphs 8 and 9 of Attachment 5.
In accordance with regulation 16(3)(b) of the EIRs, I have also reached a decision on your request.
I apologise for our failure to respond to your request within the extended deadline of 25 April 2019. This failure was to a significant extent associated with the complex and technical nature of the material falling within the scope of your request and the need to ensure it was dealt with by staff with sufficient experience and knowledge of the subject area. However we have also identified shortcomings in the management of the process and these will be addressed.
Some of the information you have requested is already available in the public domain and that information can be obtained via the following web links:
- https://www.dpea.scotland.gov.uk/Document.aspx?id=571477
- https://www.gov.scot/publications/scottish-planning-policy/pages/7/
- https://tethys.pnnl.gov/sites/default/files/publications/MacArthur-Green-2013-PFOW.pdf (see footnote 4 on page 5)
- https://www.nature.scot/professional-advice/safeguarding-protected-areas-and-species/protected-areas/international-designations/ramsar-sites
- https://www.nature.scot/sites/default/files/2018-09/Natura%20Casework%20Guidance%20-%20How%20to%20consider%20plans%20and%20projects%20affecting%20Special%20Areas%20of%20Conservation%20%28SACs%29%20and%20Special%20Protection%20Areas%20%28SPAs%29_1.pdf
- https://www.nature.scot/professional-advice/planning-and-development/environmental-assessment/habitats-regulations-appraisal-hra/habitats-regulations-appraisal-hra-help-and
- https://www.nature.scot/sites/default/files/2017-12/Scottish%20Government%20Policy%20for%20proposed%20SACs%20and%20proposed%20SPAs%20-%20updated%20November%2030th%202017%20%28A1395582%29.pdf
- https://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Simple&Keyword=ramsar&ExactPhrase=True&DateChoice=0&SortBy=DateSubmitted&ResultsPerPage=10
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(4)(d) (unfinished documents), 10(4)(e) (internal communications) and 11(2) (personal data) applies to that information. The reasons why these exceptions apply are explained in the Annex to this letter.
ANNEX
REASONS FOR NOT PROVIDING INFORMATION
An exception applies
An exception under regulation 10(4)(d) of the EIRs applies to some of the information you have requested with regard to unfinished documents (in this case the information at Annex A of Document 2 which was subsequently finished and published at https://www.gov.scot/publications/implementation-of-scottish-government-policy-on-protecting-ramsar-sites/ ). 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. However, this is outweighed by the public interest in ensuring that unfinished information is not disclosed when it might misinform the public or give a misleading impression of the Government’s view or position on the matter to which the information relates.
Also, 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 officials about the expression of policy for the protection of Ramsar sites.
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 will be affected by their assessment of whether the discussions will be disclosed in the near future, when it may undermine or constrain the Government’s view on that issue.
An exception under regulation 10(4)(e) of the EIRs (internal communications) also 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.
Finally, 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 Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data protection Act 2018. 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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Contact
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Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000
The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG
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