Correspondence related to external requests received concerning a previous response: EIR release

Information requested

1. All internal Scottish Government correspondence regarding EIR 202400434817 between 30 January 2025 and 27 March 2025. To clarify this should include:

• correspondence related to external requests received by the Scottish Government about the EIR 202400434817 such as journalists asking about the information contained in EIR 202400434817 and the Scottish Government’s response to journalist requests
• internal correspondence between Scottish Government officials and ministers about the content of EIR 202400434817 such as discussions related to whether its contents were appropriate for release or correspondence preparing responses for Scottish Ministers if they were questioned about the matter in the Scottish Parliament
• any other correspondence related either to the information contained in EIR 202400434817 or about the response itself

2. Who instructed the removal of EIR 202400434817 from the Scottish Government’s website (which occurred some time after 5 February 2025 and before 28 February 2025). Please state whether it was a Scottish Minister or Scottish Government official and if so which one (job title will suffice if it was not a senior Scottish Government official). Please provide the justification for this decision as discussed internally within the Scottish Government including any correspondence related to the decision to remove it from the Scottish Government’s website and whether any Scottish Ministers or special advisers were aware of this decision.

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.

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

1a. An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to a significant amount of the information you have requested because it is internal legal advice and disclosure would breach legal professional privilege.

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 a public interest in disclosing information as part of open, transparent and accountable 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.

It is clearly also in the public interest that decisions are taken by the Government in a fully informed legal context. Ministers and officials therefore need high-quality, comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context, and with a full appreciation of relevant facts. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.

1b. An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal communication about press lines and lines to take in the Scottish Parliament.

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 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 developing press lines and lines to take in the Scottish Parliament. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, 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.

1c. An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal communication between Scottish Government Ministers and officials about the approach to responding to requests for information under the Environmental Information (Scotland) Regulations 2004.

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, 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 our approach to answering requests for information under the Environmental Information (Scotland) Regulations 2004 will be disclosed in the near future, when it may undermine or constrain the Government’s view on that issue while it is still under discussion and development.

1d. An exception under regulation 11(1) of the EIRs (personal information) applies to some of the information requested because it is personal information of which you are the data subject, and so it is subject to the General Data Protection Regulation (GDPR) and 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.

1e. 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 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.

2. The answer to your question is that the information was removed from the Scottish Government website to review the material because of the inadvertent disclosure of legal considerations of Ministerial Submissions. The instruction to remove request 202400434817 from the Scottish Government Publications website was instructed by a Scottish Government (Marine Directorate) official with responsibility for the delivery of the information contained within the request. No Scottish Ministers or Special Advisers were involved in that decision-making process as it was an operational decision which allowed an internal review of the content of the published request. The material was re-published and provided to the requester once it was confirmed that this was an appropriate action given that the material was already in the public domain.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

EIR 202500460380 - Information released - Annex

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