Publication - FOI/EIR release

Briefing papers on UOG to Ministers/First Minister 2015-17: EIR review

Published: 7 August 2018
Directorate: Energy and Climate Change Directorate
Topic: Economy, Energy, Environment and climate change, +1 more … Public sector

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

FOI reference: FOI/17/02672
Date received: 9 January 2018
Date responded: 1 August 2018

Information requested

a. A copy of any briefing papers from Scottish Government Officials on the subject of Unconventional Oil and Gas (often referred to as "fracking") provided to Minister for Business, Innovation and Energy, Paul Wheelhouse MSP and his predecessors including Fergus Ewing MSP, between 1 January 2015 and 3 October 2017; and

b. A copy of any briefing papers from officials and Paul Wheelhouse MSP and his predecessors on the subject of Unconventional Oil and Gas (often referred to as "fracking") provided to the First Minister between 1 January 2015 and 3 October 2017.

Response

In conducting my review, I have considered the case afresh. I have concluded that a different decision should be substituted. I note the points you raised in your request for review and having further considered the circumstances of the case I have determined that we were not entitled to respond to your request under Regulation 10(4)(b) (manifestly unreasonable).

I have therefore provided a copy of most of the information you have 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 exceptions apply:

Regulation 10 (4)(e) – internal communications
Regulation 10(5)(b) – legal advice
Regulation 11(2) – personal information relating to third party

The reasons why those exceptions apply are explained below.

Reasons for not providing information

Regulation 10(4)(e) – internal communications

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal communication between Scottish Government Ministers and officials.

However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions which the information relates will be disclosed in the near future, when it may undermine or constrain the Government's view on that policy or /issue while it is still under discussion and development.

There is a strong public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers. It is clearly in the public interest that Ministers can robustly defend the Scottish Governments policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

Regulation 10(5)(b) – substantial prejudice to course of justice, fair trial, or criminal or disciplinary inquiry

An exception under regulation 10(5)(b) of the EIRs (substantial prejudice to course of justice) applies to some of the information you have requested because it is legal advice and disclosure would breach legal professional privilege.

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, 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.

Regulation 11(2) – applicant has asked for personal data of a third party

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 Schedule 1 to the Data Protection Act 1998. 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.

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