Renewable Statisic: EIR review

Information requested

At FMQs on 22nd June 2023, the First Minister made a false statement about Scotland's share of the UK's renewables.
Please provide all correspondence sent by the First Minister to the Presiding Officer and other MSPs notifying them of his false statement and proposed correction to the Official Report.
Please also provide all internal Scottish Government (including Civil Servants, Special Advisers, and Press Officers) discussion of the false statement and how it should be corrected.

Our response was issued to you on 18 August 2023 and you asked for a review on 15 September 2023 on the basis that you believed that:
All of the redactions under section 30 of FOISA are unjustifiable as such exemptions would not apply in this case where disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.

Response

Further to my letter of 27 September 2023, I have now completed my review of our response to your  request (FoI 202300367955) which was handled under the Freedom of Information (Scotland) Regulations 2002 (FOISA).

I have concluded that a different decision should be substituted.

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.

As a consequence of this, and as part of the review process, all of the information which was withheld or redacted in the original response has been reassessed under the EIRs. In particular, consideration
has been given to the redactions which were made in relation to section 30 (as sought through your review request), as well as section 29 and section 38 of FOISA. Equivalent regulations within the EIRs
(e.g. regulation 10(4)(e) – internal communications and regulation 11(2) – personal information) have been considered.

All previously redacted information has been considered on a line by line basis. The review has been approached with a presumption in favour of the release of information, with the use of exceptions in a
restrictive manner and where necessary giving consideration to the public interest test.

Whilst regulation 10(4)(e) of the EIRs – internal communications, applies to much of the redactions which were made under section 29 and 30 of FOISA, it has been determined that on applying the public
interest test the balance lies in favour of releasing the majority of this information which was previously redacted.

The majority of the redactions made under section 38 are supported by this review and are now substituted with redaction under regulation 11(2) of the EIRs.

I enclose a copy of the information you requested subject to appropriate redactions applied. For your information, as part of the review process, search activity was reconsidered and a further email
communication was identified which was not part of the original response. This is now included in the release and is subject to appropriate redaction. Redactions made under 10(4)(e) of the EIRs are
specified as [REDACTED] [EIR Reg 10(4)(e)], all other redactions applied relate to regulation 11(2) – personal information and are mainly marked as [REDACTED].

I would like to apologise for the fact that initial handling was conducted under the wrong regulatory regime, and that the response issued did not consider all of the available information (albeit only a small
amount had been overlooked in error). These two areas have been raised with the business area who handled the original response and measures will be put in place to help prevent this happening in the
future. Following reassessment of the exemptions applied in the original case, this review has concluded that the public interest lies in overturning most of the redactions originally applied.

Exceptions apply
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 mainly relates to names, email addresses, job titles and telephone numbers of certain individuals. 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.

While our aim is to provide information whenever possible, in this instance we are unable to provide a very small amount of the information you have requested because an exception under regulation 10(4)(e) (internal communications) of the EIRs applies to that information. The reasons why that exception(s) applies are explained in the Annex to this letter.

Annex 1
An exception under regulation 10(4)(e) (internal communications) of the EIRs applies to a very small amount of the information you have requested. This relates to a comment within an internal email chain
concerning some specific sensitivities and releasing this information may inadvertently relate to the release of personal information.

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 because the information in these documents helps to demonstrate the actions taken and discussions held in relation to this subject area and supports the principles of an open and transparent government. However, this is outweighed by the public interest in withholding this comment to protect a sensitivity identified and as the comment itself does not inform the wider discussion about handling or the statistics at the heart of these discussions, there is no public interest in releasing the same.

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 202300376627 - Information released

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