Copies of concern regarding Non-Domestic Rates (Scotland) Act 2020: FOI release

Information requested

1. The first recorded concern identified within the Scottish Government regarding the legislative competence of the Non-Domestic Rates (Scotland) Act 2020.
2. The initial recorded communications between officials relating to this concern, including any recorded consideration of whether ministers should be notified.'

Response

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

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 exemptions under section 29(1)(a) (formulation or development of Scottish Government policy), sections 36(1) (confidentiality in legal proceedings) and section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex to this letter. 

Reasons for not providing information

An exemption applies

An exemption(s) under section 38(1)(b) (personal information) of FOISA applies to some of the information you have requested because it is the personal data of a third party, i.e. the names or contact details of individuals, 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 exemption 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 exemption.

This exemption 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 exemption.

An exemption applies, subject to the public interest test

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on non-domestic rates.

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.  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 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 recovery costs in relation to non-domestic rates levied on unoccupied properties will be disclosed, when it may undermine or constrain the Government’s view on that policy.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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.  We recognise that there is some public interest in release as part of open and transparent 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.

FOI 202500496147 - Information Released - Annex

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