Publication - FOI/EIR release

Proposed South East Scotland Strategic Development Plan: EIR release

Published: 12 December 2023
Directorate: Local Government and Housing Directorate
Topic: Public sector
FOI reference: 202200298249
Date received: 3 May 2022
Date responded: 31 May 2022

Information request and response under the Environmental Information (Scotland) Regulations 2004.

Information requested

Any advice given to Ministers on rejection of the Proposed South East Scotland Strategic Development Plan (SDP) between 20th July 2018 and 19th May 2019.

Response

A number of documents which satisfy your request are attached. 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 a number of exceptions apply. The exceptions and reasons for applying them are found below.

The documents which satisfy your request are:
1. A submission seeking agreement to approve the SESplan SDP submitted to Minister for Local Government, Housing and Planning 1st February 2019. Also copied to Cabinet Secretary for Communities and Local Government, and Cabinet Secretary for Transport, Infrastructure and Connectivity, for information for portfolio interest;

2. A briefing document providing an update on the Scottish Government’s consideration of the proposed SESplan SDP, submitted to Cabinet Secretary for Transport, Infrastructure and Connectivity, 21 March 2019; and

3. A submission providing further advice on the proposed SESplan SDP, and seeking agreement to rejecting the plan on the basis of the further information provided, submitted to Minister for Local Government, Housing and Planning 24th April 2019. Also copied to Cabinet Secretary for Communities and Local Government, and Cabinet Secretary for Transport, Infrastructure and Connectivity for information for portfolio interest.

REASONS FOR NOT PROVIDING INFORMATION
An exception applies
While it is the Scottish Government’s aim to provide information whenever possible, in this instance we have had to withhold some of the information you have requested. This is because a number of exceptions apply to some of the information you have requested.

An exception under regulation 11(2) of the EIRs (personal information) applies to documents 1, 2, and 3 because personal data relating to officials is included in the documents, 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.

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some information contained in documents 1 and 3. This exception has been applied as some of the information you have requested is internal legal advice and disclosure would breach legal professional privilege. Some of the information you have requested also contains frank advice from officials which if disclosed would substantially inhibit the provision of advice for the purposes of deliberation.

Both are subject to the public interest test. In the former, 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. In the latter, 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 releasing this information to help understand the factors that Ministers were advised they could take into account in reaching that decision however, there is a need for Ministers and officials to have a private space to seek advice and discuss options before reaching a settled public view. Disclosing the content of such advice and discussions would substantially inhibit the free and frank provision of advice and exchange of views in the future, particularly while discussions are ongoing and decisions have not been taken, and if those discussions relate to sensitive or controversial issues.

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