Scottish Ministers' appointing Circularity Scotland Ltd as administrator of Deposit Return Scheme: EIR Review

Information requested

Original request - 202200276068
1. The application to become administrator of the deposit return scheme submitted to Scottish ministers by Circularity Scotland Ltd, and any other supporting or additional information provided by Circularity Scotland Ltd to support that application, as specified in section 14 of the regulations.

2. The full decision notice and all supporting information from Scottish ministers to Circularity Scotland Ltd appointing it as administrator of the deposit return scheme, as set out in section 15 of the regulations.

Review request - 202200298347
"I would request a full review of the original decision on what to release and what to withhold.

In particular, I would be grateful that you review these decisions against all the relevant tests under the EIRs and also whether the Scottish Government might also have considered doing so under the Freedom of Information (Scotland) Act 2002.

Alongside that, with specific reference to the Scottish Government's decision to withhold material central to this request under regulation 10(5)(f) of the EIRs, I would like you to test that decision against the regulations and the tests the government is expected to apply.

In particular, the Scottish Information Commissioner states in its guidance on how to apply the EIRs (my emphasis).

Regulation 10(5)(f) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to withhold environmental information if its disclosure would, or would be likely to, cause substantial prejudice to the interests of a person who provided information voluntarily to the authority. The exception can only be applied if all three of the following tests are satisfied:

The person was not legally obliged (and could not be legally obliged) to supply the information .

The person did not supply it in circumstances such that it could be made available except by making a request for it under the EIR.

The person has not consented to the information being disclosed.

In common with other exceptions in the EIRs:  the exception is subject to the public interest test in regulation 10(1). This means that, even if the exception applies, the information should still be disclosed unless the public interest in withholding the information outweighs the public interest in making it available.

Regarding the first test above, on not being legally obliged to provide it, I understand that Circularity Scotland voluntarily submitted its application to run the scheme and was not compelled to do so. However, once it did so it was obliged to do so in the manner stipulated by ministers in order to be considered, not least given that this involved a contract. If that argument has validity, is the Scottish government certain that the first test is satisfied in order to refuse this request, particularly against the public interest test imperative under 10(1)?

The SIC's guidance document, EIRs GuidanceRegulation 10(5)(f): Third party interests, Exception Briefing, states at 8ii:

If the public authority has the legal power to order the provider to supply the information, the information will not be covered by the exception – regardless of whether the authority has used its power or not.

Given those arguments, the next important test under the EIRs comes into play, the regulations' presumption in favour of disclosure. The SIC's guidance document EIRS Guidance - The public interest test in the EIRs - Briefing states on page 2:

Regulation 10(2)(b) – the presumption in favour of disclosure

9. The public interest test in the EIRs is similar to the test in FOISA. However, regulation 10(2)(b)builds in an explicit presumption in favour of disclosure, which makes it clear that where arguments are evenly balanced for withholding and disclosing the information, the information must be disclosed. (See Appendix 2 for the wording of regulation 10.)

10. The starting position is, therefore, that there is a public interest in disclosure of environmentalinformation (as expressed in the EIRs and associated EU Directive) and that only if there is a stronger competing public interest in withholding the information should exceptions be applied."

Response

I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response.

I have reviewed the process undertaken in the handling of your original request, including the searches undertaken for relevant information, the identification of information within scope of your request and the consideration of the application of relevant exceptions under EIRs, including the application of the public interest test where relevant, I have now completed my review and I have concluded that a different decision should be substituted.

Regulation 10(5)(f)

I can confirm that we no longer wish to rely on an exception under regulation 10(5)(f) to withhold information in this case. 

I have concluded that some information previously withheld under regulation 10(5)(f) should be released.  This information is provided to you here in the Additional Documents attached to this letter.

Having reviewed the information previously withheld under regulation 10(5)(f), I have concluded that some of that information would be exempt from disclosure under regulation 10(5)(e) (confidentiality of commercial or industrial information) as this information is commercially sensitive. This includes some information previously withheld in its entirety and some information redacted from Document 3 attached to the original response. 

Regulation 10(5)(e) (confidentiality of commercial or industrial information) also applies in part to documents 4,6,7,9,10,12,14,16,17,18,19, 20 and 21. A copy of these documents has been provided in redacted form along with this response.   

I have therefore substituted a new decision in respect of this information to withhold this information under regulation 10(5)(e). 

An exception under regulation 10(5)(e) of the EIRs (substantial prejudice to confidentiality of commercial information) applies to some of the information you have requested.  This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the confidentiality of commercial information provided by Circularity Scotland Ltd (CSL) and thus cause substantial harm to their commercial interests.  Disclosing this information would substantially prejudice CSL's ability to engage in ongoing contract negotiations and future competitive tenders and so could significantly harm their commercial business.

This exception is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception. While there is some public interest in releasing this information in the interests of open and transparent government, this is outweighed by the confidentiality of the application process and the fact that release of this information would be likely to cause substantial harm to the legitimate economic interests of the party that provided it.

In addition, I have determined that in relation to Additional Documents 7,11 and 23, an exception under regulation 11(2) of the EIRs (personal information) applies to some of the additional information 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.

Regulation 11(2)

I have also considered the application of the exception at section 11(2) of EIRs regarding personal information in relation to the documents released to you as part of the original response.  I am satisfied with the application of this exception to some of the information in the original response. I have concluded that some information withheld under this exemption should be released and so I have modified the original decision.  Additional Documents 1, 8 and 13 are versions of Documents 1, 3 and 4 which were released to you in the original response modified to include that information.  For clarity, Additional Document 8 (as a version of Document 3 from the original response) also includes redactions for regulation 10(5)(e) as detailed above.

You also queried whether your request should have been consider under the Freedom of Information (Scotland) Act 2002 (FOISA). I have considered this in my review and am satisfied that your request is for environmental information falling within the scope of regulation 2(1)(c) of the EIRs. I have however concluded that we should have formally applied an exemption under section 39(2) of FOISA. I have therefore gone on to set this out below.

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), 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.

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, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

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 202200298347 - Information Released - Annex

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