Publication - FOI/EIR release

Musselburgh Flood Scheme: EIR release

Published: 15 August 2024
Directorate: Environment and Forestry Directorate
Topic: Environment and climate change, Public sector
FOI reference: EIR/202300381420
Date received: 18 October 2023
Date responded: 29 December 2023

Information request and response under the Environmental Information (Scotland) Regulations 2004.

Information requested

A copy of all correspondence/emails/reports etc pertaining to Musselburgh Flood Scheme (including correspondence between Scottish Ministers and East Lothian Council) from January 2016 until 18 October 2023.

Response

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.

Response to your request

I enclose a copy of some of the information you requested in Annex A and the associated attachments.

While our aim is to provide information whenever possible, in this instance we are unable to provide some the information you have requested because exceptions under regulations 10(4)(e), 10(5)(d) and 11(2) of the EIRs apply.

Firstly, information has been withheld under regulation 10(4)(e) (internal communications). 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 releasing the information as part of an open, transparent and accountable government. However, this is outweighed by the greater public interest in allowing Scottish Government officials and Ministers a private space to share free and frank views for the purpose of deliberation of any given policy.

Secondly, information has been withheld under regulation 10(5)(d) (confidentiality). 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 releasing the information as part of an open, transparent and accountable government. However, this is outweighed by the right to maintain confidentiality of proceedings.

Thirdly, 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.

We also do not have to give you information which is already publicly available and easily accessible to you in another form or format. This information is noted in Annex A. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

Some of the relevant information has also been released to you in March 2022 under EIR case reference 202200276269.

Some of the documents released also contained background information relating to other local authority projects. I have removed this from the information that I have sent you as it is out of scope from your request, therefore only the information relating to Musselburgh is included in the documents.

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.