Whitesands Proposal and Public Enquiry: EIR review

Information requested

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for information relating to the Whitesands Proposal and Public Inquiry.

You asked for the information below covering the period October 2018 to 2 December 2019 relating to the Whitesands Proposal and Public Inquiry:

1. Copies of all communications between any officer in the Managing Flood Risk Team with any officer in Dumfries and Galloway Council. This should include any notes of meetings or telephone conversations, emails and hard copy letters.

2. A note of all communications between any officer in the Managing Flood Risk Team and any officer in the relevant Ministerial departments (i.e. The Minister who will be responsible for the final decision). This should include any notes of meetings or telephone conversations, emails and hard copy letters.

3. A note of all communications between any officer in the Managing Flood Risk Team and any third party operator such as Pinsent Masons Lawyers or Gillespies Architects. This should include any notes of meetings or telephone conversations, emails and hardcopy letters.

Response

An exception under regulation 11(2) of the EIRs (personal information) was applied to some of the information you requested because it is the 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.

After reviewing the case I have concluded that the original decision to redact this information, which related to the names and contact details of Scottish Government and Council officials, was correct.

An exception under regulation 10(4)(e) of the EIRs (internal communications) was also applied to some of the information you requested because it related to internal communication between Scottish Government Ministers and officials about the Public Inquiry into the proposed Whitesands Flood Protection Scheme. This exception is subject to the ‘public interest test’.

After 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 releasing this information.

Annexes A and B contain copies of the relevant documents. An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information released because it is personal data of a third party, i.e. the names and contact details of a Scottish Government officials has been redacted 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 exemption 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 exemption.

Finally, in your email of 07-01-2020 you asked if you could be involved in the review process. It may be helpful if I explain that the onus for consideration of the public interest test sits with the responding Authority. As we hold the information to which the application of the test applies, we are best placed (and required under the legislation) to make the necessary considerations prior to disclosure/withholding and in considering the wider impact that the release of the information would have on the general public. We are required to consider what is in the best interests of the public as opposed to what may be of interest to the public.

As the application of an exemption under FOI(S)A and the subsequent consideration of the public interest test are based on the information held, it would not be possible or appropriate to accept or invite any participation in this process from the applicant but we do wish to reassure you that all due consideration is given when applying exemptions to information and in balancing arguments for and against disclosure.

Also, in instances where the application of an exemption is reviewed this is undertaken by an official not involved in the compilation of the initial response to ensure that the review process is fair and robust.

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/202000014586 - Annexes A and B

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