Air Departure Tax - correspondence: FOI release

Information requested

Any correspondence (letters, emails or otherwise) sent by (a) Nicola Sturgeon (b) Derek Mackay (c) Michael Matheson on Air Departure Tax in 2018.

Response

I enclose a copy of some of the information you requested.

Some of the information you have requested is available from the Finance and Constitution Committee’s correspondence page on the Scottish Parliament website: https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/100149.aspx

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 s. 28(1) (Relations within the UK), s.29(1)(b) (Ministerial communications), s.30(b)(ii) (Free and frank exchange of views), and 33(1)(b) (Commercial interests) of FOISA apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

Reasons for not providing information - Annex
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 Air Departure Tax 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 Air Departure Tax.  There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers.

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 allowing Ministers a private space within which policy positions can be explored and refined, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good decisions can be taken.  Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy making process.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested.  This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation.  This exemption recognises the need for Ministers to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view.  Disclosing the content of this correspondence with stakeholders on Air Departure Tax will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public.

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 allowing Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on Air Departure Tax. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, such as that provided by these stakeholders. Disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest.  There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual’s contribution was released against their wishes.

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information requested.  This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of Norwegian Air Shuttle.  Disclosing this information would be likely to harm their commercial business by disclosing information on commercial decision making.

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 and transparent government, and to help account for the expenditure of public money.  However, there is a greater public interest in protecting the commercial interests of companies which engage with the Scottish Government, to encourage their ongoing communications with the Scottish Government.

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FOI-19-01269 - Information Released

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