Publication - FOI/EIR release

Trial of Benchmark’s Clean Treat system: EIR release

Published: 5 Jul 2019

Information request and response under the Environmental Information (Scotland) Regulations 2004.

Published:
5 Jul 2019
Trial of Benchmark’s Clean Treat system: EIR release
FOI reference: FOI/19/01398
Date received: 5 Jun 2019
Date responded: 3 Jul 2019
Information requested

Further to the Cabinet Secretary’s comments in the Scottish Parliament just now (online via https://www.scottishparliament.tv/), please provide information on Benchmark’s CleanTreat system.

Fergus Ewing (in reply to Tavish Scott MSP) referred to Scottish agencies discussing a trial in Scotland.

Please include any emails, photos, discussions, letters, correspondence and any other information relating a trial of CleanTreat in Scotland.

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.

Attached is a copy of some of the information you requested, provided via email as per your request.
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) (e) (the request involves making available internal communications), 10(5) (e) (confidentiality of commercial or industrial information) and 11(2) (personal information of a third party) of the EIRs applies to that information. The reasons why these exceptions apply is explained in the Annex to this letter.

 

ANNEX
REASONS FOR NOT PROVIDING INFORMATION

Exceptions that apply
Exceptions under regulations 10(4) (e) (the request involves making available internal communications), 10(5) (e) (confidentiality of commercial or industrial information) and 11(2) (personal information of a third party) of the EIRs apply to some of the information you have requested.

Regulation 10(4) (e) – the request involves making available internal communications

An exception under regulation 10(4) (e) (the request involves making available internal communications) of the EIRs 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 do 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.

Regulation 10(5) (e) – the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest

An exception under regulation 10(5) (e) (confidentiality of commercial or industrial information) of the EIRs applies to some of the information you have requested. This exception applies because disclosure of this particular information would, or would likely to, prejudice substantially the confidentiality of commercial information provided by Benchmark Holdings plc and thus cause substantial harm to their commercial interests.

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 and transparent and accountable government, and to inform public debate. However, there is a greater public interest in protecting the commercial interests of companies when substantial harm can be made to their commercial interests.

Regulation 11(2) – To the extent that environmental information requested includes personal data of which the applicant is not the data subject and in relation to which either the first or second condition set out in paragraphs (3) and (4) is satisfied, a Scottish public authority shall not make the personal data available.

An exception under regulation 11(2) (personal information of a third party) of the EIRs applies to some of the information you have requested.
An exception under regulation 11(2) of the EISRs (personal information of a third party) 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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