Publication - FOI/EIR release

Fox hunting correspondence: EIR release

Published: 9 September 2019
Directorate: Environment and Forestry Directorate
Topic: Public sector
FOI reference: FoI/19/01648, FoI/19/01649, FoI/19/01650, FoI/19/01651, FoI/19/01652, FoI/19/01654, FoI/19/01655, FoI/19/01656, FoI/19/01657, FoI/19/01658
Date received: 11 July 2019
Date responded: 6 September 2019

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

Information requested

Any correspondence (letters, emails or otherwise) on fox hunting in (a) 2018 and (b) 2019;

FoI/19/01658 between Mairi Gougeon and Alison Johnstone MSP
FoI/19/01657 between Scottish Government staff and Alison Johnstone MSP
FoI/19/01656 between Scottish Government Ministers and Alison Johnstone MSP
FoI/19/01648 to Nicola Sturgeon
FoI/19/01655 to Kate Higgins
FoI/19/01652 from Kate Higgins
FoI/19/01654 to Mairi Gougeon
FoI/19/01651 from Mairi Gougeon
FoI/19/01649 to Fergus Ewing
FoI/19/01650 from Fergus Ewing

Response

I enclose a copy of some of the information you requested.

We are unable to provide some of the information you have requested because exceptions under regulations 10(4)(e) (internal communications) and 10(5)(d) (confidentiality of proceedings provided by law), of the EIRs applies to the information. The reasons why those exceptions applies are explained in Annex A to this letter.

Furthermore, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing some of your requests under the exception at regulation10(4)(a) of the EIRs. The reasons why that exception applies, and the EIRs it applies to, are explained in Annex B to this letter.

Reasons for not providing information - Annex A
An exception applies

An exception under regulation 10(5)(d) of the EIRs (confidentiality of proceedings provided by law) applies to some of the information requested because it is legal advice. 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. The release of the content of such legal advice is likely to be appropriate only in highly compelling cases. This has been recognised by both the Scottish Information Commissioner and the courts - see, for example, the House of Lords case, Three Rivers District Council and others v Governor and Company of the Bank of England (2004) UKHL 48.

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information because it is information and advice in relation to decision making, Cabinet information, and Ministerial briefings. 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 recognise that there is some public interest in release as part of open, transparent and accountable government, and to inform public debate. 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 on fox hunting in Scotland will be disclosed in the near future, when it may undermine or constrain the Government’s view on this while it is still under discussion and development.

Furthermore, there is a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers in briefing and lines to take. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable) and robustly defend the Government’s 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.

Reasons for not providing information - Annex B
The Scottish Government does not have the information

Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have. The Scottish Government does not have the information you have requested because there was no relevant information held or has been routinely destroyed in line with our management procedures.

The EIRs this exception applies to are as follows:

Any correspondence (letters, emails or otherwise) on fox hunting in (a) 2018 and (b) 2019;
FoI/19/01658 between Mairi Gougeon and Alison Johnstone MSP
FoI/19/01655 to Kate Higgins
FoI/19/01652 from Kate Higgins
FoI/19/01657 between Scottish Government staff and Alison Johnstone MSP

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. While we recognise that there may be some public interest in information about correspondence on fox hunting in 2018 and 2019, clearly we cannot provide information which we do not hold.

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