Correspondence pertaining to the welfare of sheep on St Kilda: EIR Review

Information requested

Please supply a copy of your division’s correspondence, internal and external, pertaining to the welfare of, specifically the sheep on the St Kllda archipelago – including their considered legal welfare status – from the time of preliminary discussions around the Animal Health and Welfare (Scotland) Act 2006 to the present day.

 

Response

Further to my letter of 17 November 2021, I have now completed my review of our response to your request under the Environmental Information (Scotland) Regulations 2004 (EIRs) for "a copy of your division’s correspondence, internal and external, pertaining to the welfare of, specifically the sheep on the St Kilda archipelago – including their considered legal welfare status – from the time of preliminary discussions around the Animal Health and Welfare (Scotland) Act 2006 to the present day"

I have concluded that a different decision should be substituted.

Your review request argued that the application of the exception at 10(4)(e) (internal communications) of the EIRs to correspondence between the Scottish Government and Scottish Natural Heritage (SNH, now NaturScot) was incorrect. I have concluded that this exception cannot apply because NaturScot (SNH at the time) is a separate organisation to the Scottish Government and communications between the two cannot be considered to be internal communications. Therefore, I am releasing all relevant correspondence.

This consists of two email exchanges between Scottish Government and SNH discussing the response to two related cases of Ministerial Correspondence. I have also enclosed another exchange between officials in the Scottish Government. While the exception at 10(4)(e) (internal communications) does apply to this last exchange, I have concluded that the public interest lies in the release of this exchange rather than in upholding the exception and continuing to withhold the information. The documents have been sent to you separately.

You will note that some information has been redacted from that supplied. An exception under regulation 11(2) of EIRs (personal information) applies to this information. This exception applies because the information is personal data of a third person (i.e. staff names, phone numbers, etc.) and disclosing it would contravene the data protection principles of the United Kingdom General Data Protection Regulation and regulation 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.

I have however, concluded that some information should continue to be withheld under the exception at 10(4)(e) (internal communications). This exception applies because the information 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.

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 - 202100253172 - Information released

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