Meeting between Deputy First Minister and EnBW Generation UK: EIR Review

Information requested

Original request 202500475509

All information held regarding the meeting between Deputy First Minister Kate Forbes and EnBW on 6/3/25.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for “All information held  regarding the meeting between Deputy First Minister Kate Forbes and EnBW on 6/3/25. While not an exhaustive list, please include all information held regarding the decision to hold the meeting; all correspondence involved in arranging the meeting; any agenda and minutes of the meeting; all information regarding any subsequent actions taken as a result of the meeting.” which we responded to under case 202500475509.

You subsequently asked that we review the response. “In particular, could you specify whether there are whole documents that have been withheld or do the exemptions apply only to parts of the nine documents provided?  Could you also check that the exemptions under Sections 30 and 33 have been properly applied?”

Firstly, we have identified that the original response has been handled under the incorrect regime of FoI(S)A and not the regulations of the EIRs as the information requested is considered to be environmental in nature. I have completed my review under the conditions of the EIRs, establishing the exemptions that were applied and the appropriate exceptions that should have been considered for your initial request. Please accept my apologies for this error which we have now rectified.

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). This is a technical exemption which allows public authorities to respond to requests for environmental information under the EIRs without also considering the request under FOISA.

Where exemptions apply this 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.

In accordance with regulation 16(3)(b) of the EIRs, I have also reached a decision on your request. I have concluded that the original decision should be confirmed with modifications. I enclose a copy of the requested information.

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 regulation 10(4)(e) (Internal Communications), regulation 10(5)(f) (Third Party Interests and regulation 11(2)(Personal Data) of the EIRs applies to some of the information. The reasons why those exception(s) apply are explained in the Annex to this letter.

In regard to your particular question, I can confirm that no whole documents were identified as in scope of this request other than the nine provided.

ANNEX

Some information has been withheld because I have determined that exceptions apply these are set out below.

An exception under regulation 10(4)(e) (Internal Communications) of the EIRs applies to some of the information you have requested. The reasons why that exception applies is explained below.

Regulation 10(4)(e) allows a Scottish public authority to withhold internal communications. Internal communications between officials which contains sensitive information should be able to take place to inform quality policy and decision making.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception. I recognise that there is some public interest in release because there is an interest in open and transparent government. However, this is outweighed by the public interest in allowing internal communications between officials and Ministers to take place to inform quality policy and decision making and ensure the advice provided is robust and fully considered.

An exception under regulation 10(5)(f) (Third Party Interests and regulation) of the EIRs applies to some of the information you have requested. The reasons why that exception applies is explained below.

Regulation 10(5)(f) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) which allows a Scottish public authority to withhold environmental information if its disclosure would, or would be likely to, cause substantial prejudice to the interests of a person who provided information voluntarily to the authority.

There are three tests (in addition to public interest) to consider when testing whether this can be applied:

• the person was not legally obliged (and could not be legally obliged) to supply the information
• the person did not supply it in circumstances such that it could be made available except by making a request for it under the EIRs
• the person has not consented to the information being disclosed.

This exception is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception. I recognise that there is some public interest in release because this could enhance scrutiny of the decision-making processes. However, this is outweighed by the public interest in not disclosing this information as it would impact adversely on the interests of the person who provided the information.

An exception under regulation 11(2) of the EIRs (personal data) 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.

Finally, I have identified that some information withheld under the previous request should be released. This includes personal details of the Programme Director, Morgan, Mona and Morven wind farms given their public profile and details regarding licencing and consenting update which is publicly available information.

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 202500482260 - Information released - Documents

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