Minister for Energy and Environment briefing notes for Rural Affairs and Islands Committee meeting: EIR release

Information requested

All briefing notes that were provided to Gillian Martin, Minister and the Environment, before she appeared before Rural Affairs and Islands Committee on 1 November 2023.

Response

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.

Response to your request

I enclose a copy of some of the information you requested.

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 6(1)(b) – publicly available information, 10(4)(e) – internal communications, 10(5)(d) – confidentiality of proceedings provided for by law and regulation 11(2) – personal information of the EIRs applies to that information. The reasons why those exemptions apply are explained below.

Some of the information you have requested is available from Meeting of the Parliament: RAI/01/11/2023 | Scottish Parliament Website. Under section 6(1)(b) of the EIRs, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.

An exception applies
Regulation 10(4)(e) – internal communications

An exemption under regulation 10(4)(e) (internal communications) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers. Disclosing the content of free and frank advice on this matter will substantially inhibit the provision of such advice in the future, particularly because officials need to have a private space in which to provide free and frank advice to Ministers and it is important that Ministers are able to consider advice in confidence before the Scottish Government reaches a settled public view.

This exemptions are 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.

We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers as part of the process of exploring and refining the Government’s position on this legislation that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Furthermore, some of this advice relates to information which is now publicly available through the Parliament’s Official Report, and we see no value in disclosing this information relating to the Minister’s appearance at Committee when this information is already a matter of public record.

Regulation 10(5)(d) – confidentiality of proceedings provided for by law

An exception under regulation 10(5)(d) applies to a small amount of information. This exception applies because disclosure of this information would harm the confidentiality of the proceedings of a public authority where such confidentiality is provided for by law.

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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, we consider that this is outweighed by the public interest in protecting a channel of communication between the Ministers, officials and legal advisors. It is important that there is the ability to have full and frank discussions on behalf of the Scottish Government about the issues that relate to developing legislation in a free and frank way.

Regulation 11(2) – Personal Information

An exception under regulation 11(2) applies to a very small amount of the information requested because it is personal data of a third party, ie names and contact numbers of individuals, 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.

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 202300383426 - Information Released - Briefing

File type

24 page PDF

File size

412.3 kB