Extension of the Borders Railway - correspondence and documentation: EIR release
Information request and response under the Environmental Information (Scotland) Regulations 2004.
Information requested
You asked for “any correspondence between the UK Government and the Scottish Government regarding a feasibility study for the extension of the Borders Railway and any documentation which the Scottish Government or Transport Scotland holds regarding a feasibility study on the extension for the Borders Railway”
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.
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 reg 10(4)(e) (internal communications) and reg 10(5)(f) (Prejudice to interests of person who provided the information) of the EIRs applies to that information. The reasons why this applies are explained in Annex A to this letter.
Reasons for not providing information - Annex
An exception applies
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 Borders Rail Extension.
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 on a feasibility study for the extension of the Borders Railway 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.
An exception under regulation 10(5)(f) of the EIRs (substantial prejudice to interests of person who provided the information) applies to some of the information you have requested. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the interests of UKG (DfT) and the Borderlands Partnership who provided that information to the Scottish Government. They:
- were not under any legal obligation to give us that information;
- did not supply it in circumstances in which it could, apart from the EIRs, be made available; and
- have not consented to disclosure.
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 government. However, there is a greater public interest in protecting the interests of anyone, such as UKG (DfT) and the Borderlands Partnership, who provides the Scottish Government with information on a confidential basis. Disclosing such information without awareness of the stakeholder is likely to undermine their trust in the Government and make them reluctant in future to share information with us on issues such as Borders Rail. This would significantly impair the Scottish Government’s ability to develop policies and make decisions on the basis of fully informed advice and evidence. This would not be in the public interest.
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.
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.
Contact
Please quote the FOI reference
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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