Documentation regarding US whisky tariffs: FOI release

Information requested

All documentation held by the Scottish Government, including correspondence sent and received (including internal), minutes/notes from meetings, analysis and briefing, about US whisky tariffs, from the last two weeks.

Response

I enclose a copy of most of the information you requested in the attached annex.

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 sections s28(1) (relations within the UK), s.30(b)(i)/(ii) Free and frank exchange of views, s.30(c) otherwise prejudice effective conduct of public affairs), s.38(1)(b) (personal information) and s.41(a) (Communications with His Majesty, other members of Royal family or Royal Household) of FOISA applies to that information. The reasons why that exemption(s) applies are explained below.

Section 28(1) – Relations within the UK

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government. It is essential for the effective administration of the UK that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. The release of communications about UK-US negotiations on tariffs will mean that the UK Government is likely to be more reluctant to share such information with the Scottish Government in future. 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 maintaining good relations between the Scottish Government and the UK Government and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, such as trade and whisky tariffs.
There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

Section 30 (b)(i)/(ii) – Free and frank provision of advice / Free and frank exchange of views

An exemption under section 30(b)(i) and 30(b)(ii) of FOISA applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views. This exemption recognises the need for officials to have a private space within which to provide free and frank advice and views to Ministers, other officials and external stakeholders before the Scottish Government reaches a settled public view. 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 allowing a private space within which officials can exchange free and frank advice and views to Ministers, other officials and stakeholders, as part of the process of exploring and refining the Government’s position on trade-related matters.

Section 30(c) – Effective conduct of public affairs

An exemption under section 30(c) of FOISA (the effective conduct of public affairs) applies to some of the information requested. It is essential for officials to be able to communicate and meet with external stakeholders to discuss issues, including whisky tariffs and trade. 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 allowing officials a private space within which to communicate with appropriate external stakeholders as part of the process of developing and refining the Government’s policy position and understanding of key issues. Disclosing this information would significantly harm the Government’s ability to carry out many aspects of its work, and risks undermining relationships with stakeholders, which would not be in the public interest.

Section 38(1)(b) – Personal data relating to a third party

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, e.g. names/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.

Section 41(a) – Communications with His Majesty, other members of the Royal family or Royal Household

An exemption under section 41(a) of FOISA (communications with His Majesty etc) applies to some of the information requested because it relates to communications with His Majesty or other members of the Royal Family/Royal Household. 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 disclosing information as part of open and transparent government. However, this is outweighed by the greater public interest in maintaining the long-standing constitutional Convention that correspondence between The Sovereign and the government is confidential in nature. This Convention is an adjunct of the right of The Sovereign to be consulted by his Government, and to advise, encourage and to warn as the circumstances require. This expectation of confidentiality allows these rights of the Sovereign to be exercised effectively and supports the related Convention by which the Sovereign does not become involved in the party politics of Government. Further, in this case, disclosure would not substantially enhance transparency or public understanding of the matters requested beyond the information already available or included in the annex of this FOI.

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 202600516321 - Information Released - Annex

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