Legal concerns relating to the procedural risks associated with the Flamingo Land development: EIR Review

Information requested

Original request 202500467131

The decision not to recall the Flamingo Land application has already been made and communicated. If the withheld legal advice or briefings informed this action, then the policy formulation process has concluded, and the public interest in disclosure is significantly increased.

• No distinction has been made between different types of material. For example, if any of the legal advice was obtained from external counsel, or if any legal risk registers were produced, these may not be covered by legal privilege or Law Officer exemption. These should be considered for redacted or partial release.
• There is no confirmation of the scope of the information held. I would appreciate a document schedule or at least a general description of the number, type, and source of the withheld materials. This would enable a more informed public interest balancing test.

Response

I have now completed my review of our response to your request under the Environmental Information (Scotland) Regulations 2004 (EIRs). I have concluded that a different decision should be substituted. I also enclose a copy of some of the information you requested.

You Requested:

The decision not to recall the Flamingo Land application has already been made and communicated. If the withheld legal advice or briefings informed this action, then the policy formulation process has concluded, and the public interest in disclosure is significantly increased.

• No distinction has been made between different types of material. For example, if any of the legal advice was obtained from external counsel, or if any legal risk registers were produced, these may not be covered by legal privilege or Law Officer exemption. These should be considered for redacted or partial release.
• There is no confirmation of the scope of the information held. I would appreciate a document schedule or at least a general description of the number, type, and source of the withheld materials. This would enable a more informed public interest balancing test.

Firstly, 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.

An additional exception under regulation 10(4)(e) (internal communications) of the EIRs applies to most the information you have requested.

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 planning applications are generally in the interest of the public as well as the significant interest in this application. However, this is outweighed by the public interest in the provision of legal advice to advise to officials as part of a live planning application before Scottish Ministers.

In response to your specific request, I can confirm the extent of which this exception was used covers 3 internal emails, containing legal advice, and one document in a draft status, the final copy, without comments, is not in scope of this request.

Finally, an exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of officials, and that of a third party, 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.

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 202500478545 - Information released - Annex

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