Habitats Regulations inquires: EIR release

Information requested

1. “Internal correspondence of any sort (including WhatsApp and text messages) between Special Advisers, Scottish Ministers and Scottish Government (and agency) officials on the political risks associated with the Habitats Regulations provisions of the Natural Environment (Scotland) Bill, from 1st January 2025 to present.

2. Correspondence, including meeting notes, between the Scottish Government and the RSPB on the Habitats Regulations, from 1st January 2025 to present.

3. Whether the Scottish Government has sought legal advice on the reforms to the Habitats Regulations as set out in Part 2 of the Natural Environment (Scotland) Bill as introduced.

4. What that legal advice was.”

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.

Request for information in relation to the Habitats Regulations provisions contained within the Natural Environment (Scotland) Bill

Questions 1, 2 & 4

While our aim is to provide information whenever possible, under the exception at regulation 10(4)(b) of the EIRs a public authority may refuse a request for information if it is ‘manifestly unreasonable’. The Scottish Information Commissioner’s guidance on the regulation 10(4)(b) exception here says that there may “be instances where it is appropriate for the Commissioner to consider the proportionality of the burden on the public authority in terms of the costs and resources involved in dealing with a request when considering the application of this exception”.

In this case, carrying out Questions 1, 2 & 4 of your request under the EIRs would impose a significant resource and cost burden on the Scottish Government due to the volume of materials that would be considered as a part of said request. For these reasons, we consider that said questions are manifestly unreasonable and so we are refusing these under regulation 10(4)(b).

As the exception is conditional we have applied the ‘public interest test’. This means we have, in all the circumstances of this case, considered if the public interest in disclosing 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.

While we recognise that there may be some public interest in information relating to the Habitats Regulations provisions contained within the Natural Environment (Scotland) Bill, this is outweighed by the public interest in ensuring the efficient and effective use of public resources by not incurring excessive costs when complying with information requests.

You may however wish to consider reducing the scope of your request in order to make it more manageable due to the number of items identified that would be potentially within the scope of your request based on the criteria you have provided. For example this could be by reducing the date range required and/or requesting information relating to a particular policy area within the Scottish Government. You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website here.

Question 3

The Scottish Government takes many types of advice and it has received legal advice throughout the development process of the Natural Environment (Scotland) Bill on an ongoing basis where appropriate.

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.