Benchmark PLC correspondence - trials of CleanTreat system in Scotland: EIR release

Information requested

“Please include any new information relating to CleanTreat and the treatment of well boats discharges including details of any meetings and correspondence with Benchmark and other companies. Please include information relating to "high level talks to facilitate trials of the [CleanTreat] system in Scotland".

Response

I am providing a copy of some of the information you requested. Due to the large number of documents I have attached the following link which gives you access to view and download the requested files: https://www.dropbox.com/sh/bvaqinxu5zcgxf1/AAD4OtLePPlX97e1LPWHaAL9a?dl=0

The link goes to the Scottish Government Dropbox area, a place to share large and/or numerous files. To access the documents via Dropbox use the above link and click a document to view it in your browser.

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), 10(5) (f) (the interest of the person who provided the 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), 10(5) (f) (the interest of the person who provided the 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 10(5) (f) – the interests of the person who provided the information

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 Benchmark Holdings plc 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 Benchmark Holdings plc who provides the Scottish Government with information on a confidential basis. Disclosing such information against the express wishes 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 fish health. 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.

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) 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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