- 18 Dec 2019
Date received: 18 Nov 2019
Date responded: 17 Dec 2019
A copy of the conditions that the Council proposes to attach to the Planning permission if permitted to grant and also a copy of any reasons given by the Committee for its decisions to grant permission contrary to the recommendations of its own officers.
I enclose a copy of the material held by the Scottish Government.
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 an exception under regulations 11 (2) personal data relating to a third party and 10(5)(f) – substantial prejudice to interests of person who provided the information of the EIRs applies. The reason why those exceptions are applied is explained in the Annex of this letter.
Annex - Reasons for not providing information
Regulation 11(2) – Personal data relating to a third party
Regulation 11 of the Environmental Information (Scotland) Regulations 2004 (the EIRs) sets outs when personal data can and cannot be disclosed under the EIRs. Regulation 10(3) makes it clear that, where a request for environmental information includes personal data, the personal data must not be made available (i.e. disclosed) otherwise than in accordance with regulation 11.
Personal data must not be disclosed if it is:
- the personal data of the person requesting the information (regulation 11(1));
- the personal data of a third party – and other conditions apply (regulation 11(2)).
The exceptions in regulation 11 regulate the relationship between the EIRs, the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (the DPA 2018). Remember that regulation 11 covers personal data which also falls within the definition of environmental information. There is a separate exemption in section 38 of the Freedom of Information (Scotland) Act 2002 (FOISA) for personal data which is not environmental information.
Regulation 10(5)(f) – substantial prejudice to interests of person who provided the information
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 SEPA 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 SEPA 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 future consultations. 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.
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.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House