Edinburgh Zoo correspondence: EIR review

Information requested

“…all communication, incl letters, emails, memos, meeting minutes, notes, transcripts/recordings of calls, between SG, Edinburgh Zoo/RZSS, Foreign Office & other organisation/individual on the £2m payment and any request for additional payment(s).”

Response

I have concluded that, whilst some material should be released to you, a number of exemptions should be applied. The material released is attached at Annex A.

Where I have concluded that an exemption should apply, I have outlined below the relevant exemption and the rationale for applying it in this case.

Regulation 10(4)(e) – internal communications [in relation to general policy and decision-making]

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 about funding for a new panda enclosure at Edinburgh Zoo to enable the sale of the old Corstorphine hospital site. This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exception.

I have found that, on balance, the public interest lies in favour of upholding the exception. I 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 on funding for a new panda enclosure at Edinburgh Zoo will be disclosed in the near future, when it may undermine or constrain the Government’s view on that issue while it is still under discussion and development.

Regulation 10(4)(e) – internal communications [in relation to internal legal advice] and 10(5)(b) – substantial prejudice to course of justice, fair trial, or criminal or disciplinary inquiry legal advice [in relation to legal advice]

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. In addition, an exception under regulation 10(5)(b) of the EIRs (substantial prejudice to course of justice) applies to some of the information you have requested because it is legal advice and disclosure would breach legal professional privilege.This exception is also subject to the ‘public interest test’.

Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception. I 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.

It is clearly in the public interest that decisions are taken by the Government in a fully informed legal context. Ministers and officials therefore need high-quality, comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context, and with a full appreciation of relevant facts. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.

There is a public interest in ensuring that the Government’s position on any issue is not undermined by the disclosure of legal advice. Legal advisers need to be able to present the full picture to each other and to their clients. This includes, not only arguments in support of their final conclusions, but also relevant counter-arguments. It is in the nature of legal advice that it often sets out the possible arguments both for and against a particular view, weighing up their relative merits. This means that legal advice obtained from Scottish Government Legal Directorate will often set out the perceived weaknesses of the Government’s position.

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.

Regulation 10(5)(a) – substantial prejudice to international relations, defence, national security or public safety [in relation to international relations]

An exception under regulation 10(5)(a) of the EIRs (prejudice to international relations, defence, national security or public safety) applies to some of the information you have requested. This exception applies because disclosure of this information would, or would be likely to, prejudice substantially relations between the United Kingdom and China.

The effective conduct of international relations depends upon maintaining trust and confidence between the UK Government and other States.

In this case, the Pandas are a Chinese asset on loan to Scotland and information relating to this arrangement and Scottish Government's policy on engagement with China, is held in confidence. If the Scottish Government does not respect this confidence, the UK Government’s relations with other States and its ability to protect and promote UK interests will be substantially prejudiced. States, such as China, are likely to be more reluctant to share sensitive information or to enter negotiations on matters such as the Pandas, with Scotland or other parts of the United Kingdom in future, which would reduce both the frequency and openness of communications with the UK.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception. I recognise that there is some 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 ensuring that the UK Government is able to maintain good relations with China, in order to protect and promote UK interests abroad.

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 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 I am not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.

About FOI
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.

FOI-19-01358 - Information Released

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