Correspondence relating to S6W-09312, S6W-09314, S6W-09315: EIR review

Information requested

All correspondence relating to the following written questions:

• S6W-09312
• S6W-09314
• S6W-09315

I have concluded that a different decision should be substituted. As the information you 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. Therefore I have concluded that the original request should have been dealt with under EIRs, applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), which states that we do not also have to deal with your request under FOISA.

As such, I have reconsidered your request for information under EIRs and I apologise that your original request was not handled under the appropriate legislation.

Response

I repeated the searches for information held and reconsidered the information that should be provided under EIRs instead of FOISA. I enclose a copy of some of the information you requested as an attached file (Annex A). You will note that documents 1 and 2 from the previous response are not included as they contain no reference to the Parliamentary Questions you referenced in your request and I therefore concluded they were out of scope. Document 3 is a new document containing information that was originally withheld under FOISA exemption Section 29(1)(a) (formulation or development of government policy) but which I have considered appropriate to release under EIRs. I have also provided further information that was previously withheld under FOISA Section 38(1)(b) (personal information) and which will now be handled under regulation 11(2). This relates to the domains at the end of email addresses that identify the organisation of the correspondents. These should not have been withheld as they are not personal data.

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 exceptions under regulations 11(2) and 10(4)(e) of the EIRs applies to that information. These are explained 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.

An exception under regulation 10(4)(e) of the EIRs applies to some of the information you have requested. This allows authorities to refuse to disclose internal communications. This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. In applying the public interest test I considered in favour of disclosure the public interest in transparency around Government policy and decision making. I also considered the assumption in favour of disclosure and ensuring that exceptions are not applied in a blanket way. However, in favour of not disclosing the information I considered that officials need to be able to provide candid advice and consideration in internal communications with the expectation that this is not yet for publication. This is particularly true when there is an assumption that the final decision will be made public in due course and individuals' views in the early stages of consideration may then undermine or conflict with the Government's stated position.

I believe the arguments in favour of applying this exception outweigh the public interest in disclosing the information, especially as this exception is applied in a limited way, and with a presumption in favour of release at all points. You will see from the attached information that I have included an additional document, "Document 3", which was previously considered to fall under the FOISA exemption Section 29(1)(a) (formulation or development of government policy). I have reconsidered this under EIRs and concluded that the sections of this document that are in scope should be released. This is due to the fact that they relate to information that is largely in the public domain and so do not meet the definition of internal communications. You will also see two references to this document elsewhere that were previously redacted.

Concerns raised in your request for review

While this request has now been considered under EIRs instead of FOISA, you raised specific concerns in your request for review that may apply equally to the exceptions under EIRs that I have applied. I have addressed these below.

You queried the coverage of the exemptions applied under FOISA: "I note that exemptions have been applied to all identifying details of correspondents under “Section 38(b) – personal information”. However, I am confused by this on a number of fronts. It is my (admittedly novice) understanding that personal information is covered under Section 40, not Section 38(b). I note that this ICO webpage identifies Section 38 of the FOIA as relating to health and safety, and that Section 38(b) in particular covers information that would “endanger the safety of any individual” if not exempted from release.

'Nonetheless, I fail to see how the blanket exemptions to all names and details applied to this FOI response under Section 38(b) fail to meet the public interest test (more so, if correspondence from senior officials or ministers is included), particularly on the grounds that they would either a) endanger anyone’s safety in the terms laid out by the ICO for Section 38(b), or b) meet the standard for redaction of personal information according to the FOIA. I note the following from the ICO: “Information is not automatically exempt just because it is the personal data of someone else. You need to consider the details of the exemption. Any refusal notice under FOIA or the EIR needs to explain exactly which subsection is engaged and why"'

and later:

'Regarding the application of “Section 29(1)(a) – formulation or development of government policy”, I am similarly confused by the use of this exemption here. The relevant page on the ICO website indicates that exemptions under this subsection relate to information that would prejudice the “economic interests of the United Kingdom or of any part of the United Kingdom” – not, as the response states, the overall development of government policy. If my understanding of this exemption is correct, I once again do not see how its use here is appropriate. However, more broadly, I do not believe the extremely liberal use of this exemption and resulting paucity of information provided regarding the correspondence requested represent a reasonable application of the public interest test.'

For information, the sections of legislation you identified on the ICO website relate to the Freedom of Information Act 2000. This Act covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland. However, information held by Scottish public authorities is covered by Scotland’s own Freedom of Information (Scotland) Act 2002 (FOISA). Details of this Act can be found on the website of the Scottish Information Commissioner. The exemptions referenced in the original response relate to the appropriate sections of FOISA.

The exception applied to names and contact details, now regulation 11(2) of the EIRs, applies as these are the personal data of third parties. This exception, similar to the provisions under FOISA, applies as disclosing the personal data would contravene Article 5(1) of the UK GDPR. Guidance from Scotland's Information Commissioner explains the relevant principles which apply and in particular in paragraphs 84-87 there is guidance on the disclosure of names and contact details of public authority employees. The exemption under regulation 11(2) is absolute and therefore is not subject to the public interest test.

You questioned whether this exception should be applied in a blanket fashion, with particular in regard to correspondence from senior officials or Ministers. I can confirm that only the personal details of junior officials have been redacted and those of senior officials, special advisers or Ministers have not been redacted. I believe this is in line with the guidance mentioned above and satisfies the conditions under Article 5(1) of the UK GDPR.

You also questioned the application of the public interest test under section 29(1)(a) (formulation or development of government policy). As I have considered your request under EIRs this exemption no longer applies and regulation 10(4)(e) concerning internal communications applies to some of the same information. This has been applied in a limited way, and with a presumption in favour of release at all points, and as such I have included further information (Document 3) that had not been included in the original response. As explained previously, the public interest test was applied and information was only withheld where it related to the early consideration of advice that may otherwise have been curtailed if there was an expectation that this internal communication would be made public. It was not applied in a blanket fashion.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

EIR Review - 202300340781 - information released - Annex A

File type

16 page PDF

File size

139.6 kB