Correspondence pertaining to "The Rural Development (Continuation of Operation) (Miscellaneous Amendment) (Scotland) Regulations 2024": FOI Review

Information requested

Original request 202400445448

Correspondence pertaining to "The Rural Development (Continuation of Operation) (Miscellaneous Amendment) (Scotland) Regulations 2024".

Response

I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for correspondence pertaining to "The Rural Development (Continuation of Operation) (Miscellaneous Amendment) (Scotland) Regulations 2024".

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.

We acknowledge the delay in responding to your initial request. It was sent to us on 17 December 2024 but the officials who were involved in the regulation and held the requested communication, so were those required to undertake the necessary searches, were on annual leave and did not return until 7 January 2025. An acknowledgement of the request was issued on 8 January 2025.

The initial searches produced a lot of material and in retrospect we should have considered the upper cost limit and asked that you considered reducing the scope of the request. However, this was not done and as a result it took longer than anticipated to work through the material that had been identified. Unfortunately the result was the deadline being missed and a holding response to inform you of this not being issued. For this we apologise.

I can now provide our response to your original request. I enclose a copy of some of the information you requested.

Some of the information you have requested is available from www.legislation.gov.uk and www.parliament.scot. Direct links and further detail is provided in the annex. Under section 25(1) of FOISA, 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(s) listed, then please contact me again and I will send you a paper copy.

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 exemptions under sections 29(1)(a) (formulation or development of government policy), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), 30(c) (substantial prejudice to the effective conduct of public affairs), 36(1) (confidentiality of communication), and 38(1)(b) (personal information) of FOISA apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

Annex

Section 25(1) – information otherwise accessible

Some of the information you have requested is available from:

• Draft Legislation (inc. all associated documentation): The Rural Development (Continuation of Operation) (Miscellaneous Amendment) (Scotland) Regulations 2024
• Made Legislation (inc. all associated documentation): The Rural Development (Continuation of Operation) (Miscellaneous Amendment) (Scotland) Regulations 2024
• RAI Committee (two evidence sessions, call for views, report and Minister AC letter): The Rural Development (Continuation of Operation) (Miscellaneous Amendment) (Scotland) Regulations 2024 | Scottish Parliament Website
• Scottish Parliament Official Report (DPLRC, RAI Committee and chamber vote): Official Report: search what was said in Parliament | Scottish Parliament Website

Under section 25(1) of FOISA, 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(s) listed, then please contact me again and I will send you a paper copy.

Section 29(1)(a) – formulation or development of government policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation of the Scottish Government’s policy on agricultural reform.

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. 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 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 the discussions on agricultural reform 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 discussion and development.

Section 30(b)(i)(free and frank provision of advice) and 30(b)(ii) (free and frank exchange of views for the purposes of deliberation)

Exemptions under sections 30(b)(i) (free and frank provision of advice) and 30(b)(ii) of FOISA (free and frank exchange of views) are considered separately and apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final regulation is laid. Disclosing the content of free and frank briefing material on agricultural reform will substantially inhibit such briefing in the future, particularly because there are on-going discussions and final decisions required in this area. Additionally, section 30(b) (ii) applies to some of the information you have requested that includes correspondence between Scottish Government Officials and Scottish Parliament Officials.

These 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 free and frank advice and views to Ministers in briefings. It is clearly in the public interest that Ministers can properly provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest. We also consider that there is a greater public interest in ensuring that full and frank discussions between the Parliament’s representatives and the Scottish Government can occur for the purposes of deliberation. The public interest is served by the information that is provided to the Parliament which in turn allows for full and proper debate and scrutiny.

Section 30(c) – substantial prejudice to the effective conduct of public affairs

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on “the Rural Development (Continuation of Operation) (Miscellaneous Amendment) (Scotland) Regulations 2024", would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on agricultural reform. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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. 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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

Section 36(1) – confidentiality of communications

An exemption under section 36(1) of FOISA (confidentiality of communications) applies to some of the information requested because it is legal advice and is therefore subject to legal professional privilege.

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. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

Section 38(1)(b) – personal information

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names and contact details 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.

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FOI 202500450636 - Information released - Attachments

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