Lorna Slater IMA exemption correspondence 2022: EIR Review

Information requested

Original request 202300358575

A copy of all correspondence received by the Minister for Green Skills, Circular Economy and Biodiversity from her officials on the process and application for an Internal Market Act exemption between January 2022 and December 2022.

Response

I have now completed our review of our response to your request under the Environmental Information (Scotland) Regulations 2004 (EIRs).

Your request

“A copy of all correspondence received by the Minister for Green Skills, Circular Economy and Biodiversity from her officials on the process and application for an Internal Market Act exemption between January 2022 and December 2022.”

Your request for review

“I would like to request a review into this response on the basis that the exemption process is of significant public interest and has been discussed widely in Parliamentary debates and the media. To aid transparency and inform public debate I believe that the exemptions 10(4)(d) (material in the course of completion, unfinished document, or incomplete data); 10(4) (e) (internal communication) and 10 (5)(f) (third party interests) should not apply in this case. I would also request all attachments related to my FOI with the reference number 202300358575.”

Review outcome

I have concluded that a different decision should be substituted.

In conducting my review, I have reconsidered the information previously withheld, revisiting the application of the exception and the public interest test in each instance. As you did not express any dissatisfaction with the application of regulation 11(2) (personal information) in your request for review I have not considered information previously withheld under this exception.

I have determined that all of the information previously withheld under regulations 10(4)(d) (material in the course of completion, unfinished document, or incomplete data) and 10(5)(f) (third party interests) and that most of the information previously withheld under regulation 10(4)(e) can now be disclosed. I have enclosed a copy of this information in Annex B to this letter.

I am however satisfied that a small amount of information previously withheld under regulation 10(4)(e) (internal communication) would remain exempt from disclosure under this exception. I have set out further reasoning for my conclusion in Annex A to this letter.

ANNEX A

Regulation 10(4)(e) – Internal Communications

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to a small amount of the information you have requested because it is internal communication between Scottish Government Ministers and officials about the implementation of DRS by other UK administrations.

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 on the implementation of DRS by other UK administrations will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Regulation 10(4)(e) – Internal Communications – legal advice

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to a small amount 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 inconfidence, like any other public or private organisation.

Regulation 11(2) – Personal Information

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

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.

EIR 202300374935 - Information released - Annex B

File type

12 page PDF

File size

439.6 kB