Publication - FOI/EIR release

Correspondence with EU Commission in 2020 to present: FOI release

Published: 6 November 2020
Topic: Brexit, Public sector
FOI reference: FOI/202000077292
Date received: 18 August 2020
Date responded: 14 September 2020

Information request and response under the Freedom of Information (Scotland) Act 2002.

Information requested

Your request You asked for:

1) Correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone or video calls, texts or instant messages, minutes of meetings, briefings or otherwise) between Scottish Government ministers and the EU Commission in the time period 1 January 2020 to present.

2) Correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone or video calls, texts or instant messages, minutes of meetings, briefings or otherwise) between Scottish Government officials and the EU Commission, on the subject of EU-UK negotiations on (i) the UK’s exit from the EU or (ii) the UK’s future relationship with the EU, in the time period 1 January 2020 to present.

3) Correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone or video calls, texts or instant messages, minutes of meetings, briefings or otherwise) between Scottish Government ministers and Michel Barnier in the time period 1 January 2020 to present.

4) Correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone or video calls, texts or instant messages, minutes of meetings, briefings or otherwise) between Scottish Government officials and Michel Barnier in the time period 1 January 2020 to present.

Response

I enclose a copy of most of the information that you have requested.

I enclose a copy of 23 documents. Documents 1 to 4 and 8 to 10 are being released in full, documents 5 to 6 and 11 to 23 are being released subject to a small amount of personal data redactions under section 38(1)(b) of FOISA. Document 7 is being released with a small amount of personal data redacted under section 38(1)(b) of FOISA and one paragraph redacted under section 30(c) of FOISA.

Documents 1, 2, 3, 4, 8, 9 and 10 fall within part one, documents 7, 11, 13, 14, 15, 16, 17, 18, 19 and 21 fall within part 2 and documents 5, 6, 12, 20, 22 and 23 fall within part 4 of your request.

In addition, in relation to part three of your request, minutes of a meeting between the First Minister and Michael Barnier which took place on 10th of February 2020 are available here: https://www.gov.scot/publications/foi-202000016635/.

You will note that some information has been redacted from this disclosure. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information set out in these minutes because exemptions under sections 30(b) (ii) (free and frank exchange of views), 32(1)(a)(ii) (international relations) and section 38(1)(b) of FOISA apply to that information.

I have set out the reasons why these exemptions apply is explained in the Annex to this letter.

Annex - Reasons for not providing information
An exemption applies

Section 38(1)(b) – applicant has asked for personal data of a third party

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested in all four parts of your request because it is personal data of a third party, e.g. names/contact details of individuals, 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 exemption 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 exemption.

An exemption applies, subject to the public interest test

Section 32(1)(a)(ii) of FOISA (International Relations) applies to some of the information requested in part 3 of your request. Disclosure of some of the information would undermine trust between the UK (including Scotland) and the European Commission. It could also inhibit and constrain discussions in the future because the European Commission and other EU stakeholders would be reluctant to engage in free and frank discussions on a range of topics if they believe that those views are likely to be made public. There is a vital public interest in allowing Scottish and UK Ministers and officials a private space within which to engage in full and frank discussions with their counterparts in Europe.

Such discussion makes for better quality and better informed policies and decisions on issues with an international dimension and aids the protection and promotion of UK interests abroad. Inappropriate disclosure is likely to damage other States’ confidence and trust in the UK and thus undermine future discussions and international relations more generally. 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 some public interest in release because the negotiations between the UK and EU will have a profound impact on the lives of all citizens within the UK. However, this is outweighed by the public interest in ensuring that there can be frank discussion between Scottish Government officials and European counterparts without it hampering ongoing negotiations between UK Government the EU and the relationship between the Scottish Government and the UK Government.

An exemption under section 30(b)(ii) (free and frank exchange of views) applies to some of the information requested in part three of your request. 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.

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. 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.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to one paragraph of the information requested in part 2 of your request (specifically within document number 7). It is essential for officials to be able to communicate, often in confidence, with external stakeholders on a range of issues, including consultation under section 7 of the Section 60 Code of Practice when preparing a response to a Freedom of Information request in which the external stakeholder has a significant interest. Disclosing the content of these communications is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to provide their views fully and frankly if they believe that their views are likely to be made public. This would significantly harm the Scottish Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions when responding to requests for information.

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 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 when preparing a response to an information request in which a stakeholder has a material interest. This private space is essential to enable us to comply with the Section 60 Code of Practice and to ensure all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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