Transport Scotland - Dualling of the A96 documentation: EIR release

Information requested

The release of all documents that have hitherto been redacted, in whole or in part, relating to advice provided to Ministers concerning the dualling of the A96. This specifically includes any documents previously withheld or partially redacted in responses to FOI requests submitted since the start of the 2021 Parliamentary Session.

Public Interest and Legal Basis:

This request is made having regard to the growth of public interest in the question of whether the A96 dualling will proceed, and separately and as part of that, whether the Scottish Government policy of delivering the Nairn bypass will proceed, and in the light of the substantial publicity accorded to this issue, and on the basis that the Scottish Government EITHER have underestimated the level of public interest in the disclosure of this information to provide the truthful account of advice and the basis of advice; and in particular to meet the public interest in open transparent decision making, given the view, held by some, that the withholding of that advice, has been made, not because of an impartial and fair assessment of the public interest, but rather the made in the interests of the Scottish Government to conceal that the process of decision making has been protracted deliberately, especially in relation to the issuing of made orders which were drafted in the previous decade, but not made until 22nd February, 2024;

There is therefore an overwhelming public interest in the disclosure of this information. The dualling of the A96 and the Nairn bypass are matters of substantial public concern, and there is a clear right of the public to understand:

1. The advice provided to Ministers and the basis for policy decisions.
2. The reasons behind delays in the issuance of “made orders,” some drafted in the previous decade but only issued on 22 February 2024.
3. Whether delays or procedural decisions were influenced by political considerations rather than bona fide public administration.

Under FOISA and EIR, any exemption claimed on the basis of internal deliberations or government candour (e.g., Section 30 FOISA or Regulation 12(4)(d) EIR) must be weighed against the public interest in disclosure. The Scottish Information Commissioner has repeatedly held that the public interest in transparency, particularly in high-profile projects affecting significant infrastructure and local communities, can outweigh internal confidentiality.

Given the substantial media coverage and public debate on this issue, it is submitted that the public interest in disclosure outweighs any interest in maintaining internal confidentiality. Any prior redactions, whether partial or full, appear to have been applied to conceal delays or procedural choices rather than to protect the effective conduct of public affairs, which would be contrary to the intended purpose of FOISA/EIR exemptions.

For guidance on the application of Section 30 and public interest balancing, I refer to the Scottish Government briefing:

Section 30 – Prejudice to the Effective Conduct of Public Affairs

I therefore request that all previously redacted material be disclosed in full, and that a substantive response be provided within the statutory timescale.

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.

We have considered the EIRs listed below in scope of your request from the start of the parliamentary session in 2021. These were identified as having had material previously redacted/withheld from release:

• 202100154186
• 202100157108
• 202100216548
• 202100245258
• 202100251442
• 202200270239
• 202200324323
• 202300356405
• 202300369829
• 202300371575
• 202300376421
• 202300376456
• 202400400177
• 202400421478
• 202400421992
• 202400421993
• 202400421994
• 202400421995
• 202400423416
• 202400441545
• 202400444991
• 202500479110

The information which can now be released from these EIRs is contained within Appendix A however some exceptions to the material still apply. These exceptions are outlined below:

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. This exception has also been applied to Appendix A contained within this response.

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. This regulation has been applied to the Climate Compatibility Assessment which can be found using the following link Climate Compatibility Assessment Report (Draft) - A96 Corridor Review | Transport Scotland. This material was previously withheld in EIR 202400421478 under regulation 10(4)(d) of the EIRs (unfinished or incomplete information). In relation to EIR 202400441545, annex A and B attached to the Note from 2 October 2024 are now publicly available and easily accessible to you in another form or format. These can be found using the following links A96 Corridor Review | Reports, Assessments and Publications | Transport Scotland and A96 Corridor Review Draft Summary Report 2024.

We are also unable to provide some of the information requested because of an exception under regulation 10(4)(e) of the EIRs (internal communications) which applies to some of the information requested because it is internal communication between Transport Scotland / Scottish Government officials and Scottish Ministers regarding the A96 Dualling Programme.

This exception is subject to the ‘public interest test’. This means we have taken account of all the circumstances of the case and considered whether, on balance, disclosing the information is outweighed by the public good to be had by applying the exception. We have found that, on balance, the public interest lies in favour of applying the exception and I have outlined the specific reasons for this below.

We do recognise that there is some public interest in releasing this information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the ability for Scottish Government, its Ministers and officials to be able to discuss, debate and deliver high quality policy including the decision-making processes in a private thinking space and ensuring it can be conducted in an environment which does not hamper this process. In order to do so they must be able to properly discuss, debate and exchange views on how implementing policy will be undertaken and part of this is the development of briefing material, the deliberations that have taken place and the decisions made until policy is finalised. Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications and therefore it would not be appropriate to release information ahead of that process concluding. If released would otherwise impact on effective conduct of public affairs.

A further exception under the same regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal communication of the Scottish Cabinet Ministers about the A96 Dualling Programme.

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 allowing Cabinet Ministers a private space within which issues can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Cabinet Ministers, which in turn will undermine the quality of the decision making process.

Paragraph 2.1 of the Scottish Ministerial Code provides that "the privacy of opinions expressed and advice offered within the Government should be maintained" at all times. Cabinet papers/agendas/minutes are essential elements which support and assist collective discussion in the private space which Ministers need to reach agreed positions.

The weekly meeting of the Scottish Cabinet is the highest decision-making forum within the Scottish Government, and it follows that all information considered by Cabinet must be handled with great care.

Properly functioning Cabinet processes are generally recognised to be of vital public interest: Cabinet government is based on the principle of collective responsibility, which the Scottish Ministerial Code defines in the following terms:

"The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Government should be maintained. The internal processes through which a Government decision has been made should not normally be disclosed."
(Scottish Ministerial Code, 2018 edition, paragraphs 2.1 and 2.4)

Cabinet papers are invariably produced on the assumption that they will not be disclosed until a significant amount of time has elapsed.

Cabinet minutes provide a full account of decisions made but are not a verbatim record. As such it is not possible to determine with certainty the precise number of times a particular topic has been discussed at Cabinet nor when a topic was first raised at Cabinet within a particular timeframe.

A further exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some 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.

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 202500489942 - Information released - Appendix A

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