Vacasay Salmon Farm: EIR review

I have completed my review of our response, issued 5 November 2018, to your request under the Environmental Information (Scotland) Regulations 2004 (EIRs) for FoI/18/02916 in which you requested a review as outlined below:

 "6. Details of any briefings and correspondence betAween MS staff and Scottish Ministers (and the staff of their offices) regarding Vacasay salmon during 2018 to date."

 You applied the execpetion on the following basis:A

"A further exception under regulation 10(4)(e) of the EIRs (internal communications) applies to the information you requested at point 6 of your request (details of any briefings and correspondence between MS staff and Scottish Ministers (and the staff of their offices) regarding Vacasay salmon during 2018 to date) because it is internal communication about SPQ answers, press lines and lines to take."

However, the Aarhus Convention Guide says, at page 85, that the following types of documents should not be treated as “internal communications”:

(i) Factual materials, even when they are still in preliminary or draft form

 On this basis I should have been provided with all factual materials, statements of facts or any factual material that was used to inform Ministers, (or their staff), or those factual materials used by individuals informing Ministers on SPQ answers, press lines and lines to take.  It is my view that these factual materials would include statements made in correspondence by agencies with expertise, regarding their interpretation of any factual materials.

I have concluded that the original decision should be confirmed, with modifications.

In conducting my review I have considered the case afresh, taking account of the points you note in your request for review.

I have concluded that whilst we were entitled to apply an exception under Regulation 10(4)(e) to some of the information previously withheld for the reasons given in our previous response, we were not entitled to apply this exception to all of the information. I have therefore enclosed a copy of this information.

A small amount has been redacted from this release as an exception under regulation 11(2) of the EIRs (personal information) 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.

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