Protection of Ramsar sites: EIR release

Information requested

1. A full version of “Document 2” from case FOI/19/00577, with no content redacted under EIRs regulation 10 or similar FOISA exemptions. [“Document 2”, disclosed with redactions on 3 May 2019 and detailed at Annex A para 1, is the last pdf document linked from footnote 1].

2. Any documents (including emails and/or notes of meetings and telephone conversations) recording the process of drafting · “Document 2” from case FOI/19/00577 and/or · paras 8 and 9 of the “Ramsar guidance” dated 22 January 2019 (Annex A footnote 2) which have not been previously disclosed under the appeal of FOI/19/00577.

Response

As with FOI case 19/00577, the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), and we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

With respect to your query (1):

Related to your request for an un-redacted version of “Document 2”, we have re-considered the exemptions that applied to the parts of the document that were redacted at the time of release (i.e. EIR regulations 10(4)(e) (internal communications), and 11(2) (personal information)) and consider that despite the passage of time, these remain applicable. The reasons for applying these exemptions to the redacted text are explained below:

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to the information you have requested because this information is set out in document 2 which is an internal Scottish Government briefing on the protection of Ramsar sites. 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 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 will be disclosed in the near future, when it may undermine or constrain the Government’s view on that issue. We have considered the policy landscape since your previous request (19/00577) and have concluded that in the intervening period, there has been no material change in circumstance.

An exception under regulation 11(2) of the EIRs (personal information) also applies to the information requested 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.

With respect to your query (2):

Regarding your request for information related to the drafting of “Document 2” from case FOI/19/00577 and paras 8 and 9 of the “Ramsar guidance” dated 22 January 2019, we have reassessed the information held by the Scottish Government related to the drafting of Document 2 and para 8 & 9 of the Ramsar guidance and attach some of the information to this letter.

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 an exception under regulation 10(4)(e) of the EIRs (internal communications) applies to that information.

An exception under regulation 10(4)(e) (internal communications) of the EIRs applies to some of the information you have requested because it is internal 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.

An exception under regulation 10(4)(e) of the EIRs (internal communications) also applies to some of the information you have requested because it is internal communication between Scottish Government Ministers and officials about how the Scottish Government expects its policy on the protection of Ramsar sites to be implemented.

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 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 will be disclosed in the near future, when it may undermine or constrain the Government’s view on that issue.

Finally, an exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested in this part 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.

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.

FOI - 202100201628 - Information Released - Annex

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