Briefings to Ministers on the electricity market and/or wider net zero issues: FOI Review

Information requested

Original request 202500465514

This is a follow up request to a previous FOI response. Your ref: 202500461036

The above referenced FOI response provided an item with the title "Minister for Independence: Introduction to Building a New Scotland: Net Zero Policy: 31.05.23 –file note"

That item includes the following remark:

"Officials confirmed that Ms McAllan and Mr Gray had also been offered briefings on both electricity market and wider net zero issues."

Please provide the following information:

(1.) Did either Ms McAllan or Mr Gray take up the offer of briefings from officials on the electricity market and/or wider net zero issues?

(2.) If any such briefings did occur, please provide all briefing materials prepared for either Ms McAllan or Mr Gray, along with any notes/minutes recording what was discussed at briefing meetings, and a full list of who attended the meetings.

(3.) If no such briefings occurred, please provide any draft briefing materials prepared in relation to the offer of the briefings.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002.

Your request was:

This is a follow up request to a previous FOI response. Your ref: 202500461036

The above referenced FOI response provided an item with the title "Minister for Independence: Introduction to Building a New Scotland: Net Zero Policy: 31.05.23 –file note"

That item includes the following remark:

"Officials confirmed that Ms McAllan and Mr Gray had also been offered briefings on both electricity market and wider net zero issues."

Please provide the following information:

(1.) Did either Ms McAllan or Mr Gray take up the offer of briefings from officials on the electricity market and/or wider net zero issues?

(2.) If any such briefings did occur, please provide all briefing materials prepared for either Ms McAllan or Mr Gray, along with any notes/minutes recording what was discussed at briefing meetings, and a full list of who attended the meetings.

(3.) If no such briefings occurred, please provide any draft briefing materials prepared in relation to the offer of the briefings.

Your request for review was because:

“the exemptions justifying the redactions under sections 29 and 30 of FOISA have been misapplied. The redacted information relates to the Scottish Government’s position on policy questions outside its own powers. There can be no public interest in withholding this information.”

I have concluded that a different decision should be substituted.

The information you 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. Therefore I have concluded that the original request should have been dealt with under EIRs, applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), which states that we do not also have to deal with your request under FOISA. Please accept my apologies that your initial request was not treated under the correct regime.

For clarity when undertaking the review I have established that there was information withheld under the following exemptions of FoI(S)A:

Section29(1)(a)
Section 30(b)(i)
Section 38(1)(b)

Whilst you have not expressed a dissatisfaction with the application of section 38(1)(b) I wish to confirm that under the EIRs this information would have been withheld under regulation 11(2).

In conducting my review, I have reconsidered the information previously withheld, revisiting the application of the exemptions and the public interest test applied in each instance. In addition I have had to reconsider any appropriate exception that may now apply to the information due to your request now being considered under the EIRs.

As you did not express any dissatisfaction with the withholding of personal information in your request for review I have not considered information previously withheld under the exemption of section 38(1)(b) or its equivalent exception under the EIRs of regulation 11(2).

An exception under regulation 11(2) of the EIRs (personal information) continues to apply to this information 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.

The information you requested related to briefing and advice provided to Scottish Ministers by civil servants. I have reviewed and confirmed that these were internal communications. In my review I have presumed that there is a public interest in disclosure of environmental information and that only if there is a stronger competing public interest in withholding the information should exceptions be applied.

You also stated in your request for a review that this was because you believe that there can be no public interest in withholding this information, because it relates to matters that are not devolved to the Scottish Government.

The function and responsibilities of the Scottish Government do not fully describe its status and liabilities as a public authority. The extent of any public interest consideration is therefore not based solely upon the powers devolved to the Scottish Ministers. This approach would also not be consistent with other parts of the relevant legislation. For this reason, I do not agree that the effects of disclosure are not relevant to the public interest in this instance.

I have therefore considered whether the release of the information requested would or would not be in the public interest, as per the Environmental Information (Scotland) Regulations 2004 (EIRs).

The original response to your request included five documents, two of which also related to other FOI requests that you had submitted. Document 4 (FM briefing note – FM deep dive on energy markets – 19 May 2023) and Document 5 (Slide pack briefing – FM deep dive on energy markets – May 2023).

I have reviewed your original request and the documents that were released to you, I have determined that some information was not provided to you that should have been. In most cases this information was already in the public domain or re-stated information that was intended for general communication.

I have attached a copy of this information as Document 1, Document 2 and Document 3. I have not reviewed Document 4 or 5 as I determined that these were not within the scope of your original request. I have attached two additional documents relating to Document 2 (marked Document 2A and Document 2B). The information in these documents was also within the scope of your original request.

You will note that other parts of this document have been redacted. An exception under regulation 10(4) (e) of the EIRs (internal communications) has been applied where this refers to policy advice provided by officials to Scottish Ministers.

As noted above, this exception is subject to the ‘public interest test’. In applying this exception I have therefore considered if the public interest in disclosing the information outweighs the public interest in applying the exception.

The Scottish Government recognises that there is a general public interest in the release as part of open, transparent and accountable government, and to inform public debate. However it is my determination that there is also a relevant and greater public interest in enabling informed and effective decision-making by the Scottish Government as a public authority. This reflects the need for Ministers and officials to be able to express and consider all available options, include different perspectives and to debate these rigorously to fully understand their possible implications.

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.

FOI 202500470352 - Information released - Documents

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