Correspondence relating to A9 and A96 dualling programme: EIR release

Information requested

I wish to request the following under freedom of information legislation. 

1. Copies of all correspondence sent to or from the Cabinet secretary for net zero,energy and transport, and/or the minister for transport, relating to the dualling of the A9 and/or the A96, in August, September and/or October.

Response

As all of 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.

Please find below response to requests for information you made in your email.

Please refer to Annex A in response to your request for information which includes correspondence sent to or from the Cabinet Secretary for Net Zero, Energy and Transport and/or the Minister For Transport relating to the dualling of the A9 and/or the A96, in August, September and/or October to the date of your request 28 October 2021.

Please refer to Annex B which contains extracts of emails, briefings and submissions sent to or from the Cabinet Secretary for Net Zero, Energy and Transport and/or the Minister For Transport relating to the dualling of the A9 and/or the A96, in August, September and/or October to the date of your request 28 October 2021.

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), 10(5)(e), 6(1)(b), and 11(2) of the EIRs apply to that information.

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 regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information because it is internal communications between Transport Scotland / Scottish Government officials, and Scottish Ministers about the A9 and A96 dualling programmes. This exception has been applied to Annex B contained within this response. The reasons why that exception applies are explained below.

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, this is outweighed by the public interest in maintaining 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 discussions on the A9 and A96 Dualling programmes will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under development. The information requested is internal communication regarding development of government policy and if released would otherwise impact on effective conduct of public affairs.

Some information was also excepted under 10(5)(e) of the EIRs, which states, ‘A Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest”. Some of the information you requested contained confidential commercial information so it has not been included in response. This exception has been applied to Annex B contained within this response.

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. The information requested is commercial information and if released would otherwise impact on effective conduct of public affairs.

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. We have applied this regulation to Parliamentary Questions and Parliamentary/Committee statements referred to in the submission dated 20th of September 2021 which is contained in Annex B and this information can be accessed via the Scottish Government’s website online at; https://archive2021.parliament.scot/parliamentary-business.aspx.

In addition 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. This exception has been applied to Annex A and B contained within this response.

Further information
Although falling outwith scope of your request we have also included responses that have been issued from Transport Scotland officials as the original correspondence was sent to the Cabinet Secretary for Net Zero, Energy and Transport and/or the Minister For Transport . Please see correspondence references below which this applies to;

1. 202100227945
2. 202100229558
3. 202100233742
4. 202100233439
5. 202100235894
6. 202100236834
7. 202100245249
8. 202100249034

In addition we have also included a further piece of correspondence which falls out the scope of your request as it was issued on the 2nd of November 2021 however given the original request was received on the 4th of October 2021 we have included the response for your information.

Due to the size of the files we are unable to upload the documents referred to above. If you wish to consider, please contact us at the address below and we will be happy to provide.

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.