Marchmont and Sciennes Development Trust application: EIR release

FOI reference: FOI/17/02489
Date received: 23 October 2017
Date responded: 13 November 2017

Information requested

A copy of NHS Lothian's comments on our last application.

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.

I enclose a copy of some 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 of exceptions under regulations 10(5)(e) – substantial prejudice to confidentiality of commercial or industrial information and 10(5)(f) – substantial prejudice to interests of person who provided the information of the EIRs applies to that information. The reasons why that exception(s) applies are explained below.

Reasons for not providing information

Regulation 10(5)(e) – substantial prejudice to confidentiality of commercial or industrial information

An exception under regulation 10(5)(e) of the EIRs (substantial prejudice to confidentiality of commercial information) applies to some of the information you have requested. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the confidentiality of commercial information provided by NHS Lothian and thus cause substantial harm to their commercial interests. For example, whilst the sale has been completed, the conditions of sale are still active. To make these conditions of sale publically available, at this time, could give prejudice the seller's and purchaser's interests and so could significantly harm their commercial business.

This exception 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 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 and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which have entered into negotiations regarding Scottish Government assets disposals, to ensure that we are always able to obtain the best value for public money.

Regulation 10(5)(f) – substantial prejudice to interests of person who provided the information

An exception under regulation 10(5)(f) of the EIRs (substantial prejudice to interests of person who provided the information) applies to some of the information you have requested. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the interests of NHS Lothian who provided that information to the Scottish Government. They:

• were not under any legal obligation to give us that information;
• did not supply it in circumstances in which it could, apart from the EIRs, be made available; and
• have not consented to disclosure.

This exception 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 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 and transparent government. However, there is a greater public interest in protecting the interests of anyone who provides the Scottish Government with information on a confidential basis. Disclosing such information against the express wishes of the stakeholder is likely to undermine their trust in the Government and make them reluctant in future to share information with us on issues, such as future planned asset disposals. This would significantly impair the Scottish Government's ability to develop policies and make decisions on the basis of fully informed advice and evidence. This would not be in the public interest.

About FOI

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FOI-17-02489 - related documents including maps.pdf

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48 page PDF

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