Minutes of meeting with First Minister and Michel Barnier on 10th of February 2020: FOI review

Information requested

Minutes of meeting with First Minister and Michel Barnier on 10th of February 2020.

Response

Further to our letter of 12 March 2020, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for the full minutes of the meeting held by Michel Barnier with the First Minister of Scotland on Monday February 10 2020.
In conducting my review I have reconsidered all of the information previously withheld under section 32(1)(a)(ii) (international relations) as I note the dissatisfaction expressed in your request for review is limited to the application of this exemption.
I have concluded that the original decision should be confirmed but with modifications. 

I am satisfied that an exemption under section 32(1)(a)(ii) was appropriately applied to the information redacted from the minutes you requested. I have determined that our response could have set out more clearly that 9 short paragraphs have been withheld. You may also find it helpful if I further explain
that, whilst the First Minister was of course not acting on behalf of the UK and the UK Government remains the negotiating party, the negotiations between the UK and EU are ongoing, highly sensitive and pertinent to the interests of the people of Scotland.

To release the minutes of this meeting would undermine trust between the UK and EU and hamper the free and frank exchange of information between the UK, including Scotland, and the European Commission’s Taskforce which leads the negotiations on behalf of the EU Member States. The matters addressed were not specific to Scotland, or the relationship between the European Commissioner Taskforce and Scotland alone and therefore the likely harm from disclosure would be to the UK as a whole and not just to relations with Scotland. In reaching this decision, the Scottish Government liaised with the European Commission’s Task Force and following consultation we are satisfied that releasing this information would be substantially detrimental to the relationship between the UK and the European Commission Taskforce.

This exemption is subject to the ‘public interest test’ and I acknowledge that our initial response should have included an explanation as to why the public interest in withholding the information outweighed that of releasing it. Having considered the public interest factors as part of my review and taking account of all the circumstances of this case, I am satisfied that the public interest in disclosing the information is not outweighed by the public interest in applying the exemption.

We recognise that there is some public interest in release because of the interest of being an open and transparent government. I also acknowledge that there is a public interest in discussions between the First Minister and Michel Barnier on the Scottish Government’s position on the future of relationship negotiations.
However, this is outweighed by the public interest regarding the need to protect the private space for candid discussions to take place between the countries of the UK, the UK as a whole and the EU and to avoid any inhibition in these discussions. There is also a strong public interest in protecting the integrity of the negotiations and in maintaining good working relations between the UK, the European Commission and the EU, not only whilst these negotiations are ongoing and highly sensitive in nature but also in the longer term once a position has been agreed. Scottish Ministers, have a valid need to engage with both the UK Government and the European Union in a candid manner in order to ensure that they are kept fully informed of the potential impact of discussions on the people of Scotland and to enable them to best promote Scotland’s interests.

Disclosing the content of these discussions would be significantly detrimental to EU negotiations with the UK as a whole which would not be in the public interest.

In addition, I have also concluded that an exemption under section 30(b)(ii) (free and frank exchange of views) applies to the information previously withheld. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers to have a private space within which to discuss issues and options with external stakeholders, such as the European Commission.

Disclosing the content of discussions between the First Minister and Michel Barnier on the Scottish Government’s position on the future of relationship negotiations will substantially inhibit such discussions in the future, because the European Commission will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly while these discussions are still ongoing and decisions have not been taken.

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. 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, there is a greater public interest in allowing Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on Scotland’s relationship with the EU, until the Government as a whole can adopt a policy that is sound and likely to be effective.

Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and the European Commission, which would not be in the public interest. There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual’s contribution was released against their wishes.

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.