Correspondence relating to XL Bully Dog Ban decision: EIR release

Information requested

1. A copy of the minutes of the meeting in which the First Minister and the Scottish Government cabinet decided to ban the dogs. As well as including the minutes, confirm who was present at the decision and who agreed to it. Also tell me the time and date.
2. A copy of any emails in the inbox of Shona Robison and Humza Yousaf about “XL Bully Dogs” and banning them on Wednesday 10th January and Thursday 11th January.
3. A copy of any emails from the Scottish Government press team on XL Bully Dogs on the morning of Thursday 11th January.

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.

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 exceptions under regulations 10(4)(e) (internal communications) and 11(2) (personal information) of the EIRs applies to that information. The reasons why those exceptions apply are explained below.

In response to question one. An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to the information you have requested because it is internal communication between Scottish Government Ministers and/or officials about XL Bully dogs.

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 XL Bully policy will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy/issue while it is still under discussion and development.

In addition, Government in Scotland, as in the rest of the UK, has long worked under the convention that Ministers are collectively responsible for policy/decisions and their delivery. Collective responsibility requires collective discretion, and ensures that Ministers can express their views frankly in internal discussion of an issue while maintaining a united front once decisions have been reached. Disclosing communications between individual Ministers and/or Cabinet papers which record their views would prejudice substantially the maintenance of the convention. This would not be in the public interest.

In response to question two. A copy of all relevant e-mails are attached as an Annex. However an exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal communication between Scottish Government Ministers and/or officials about XL Bully dogs (as above).

In addition 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.

In response to question three. An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to all of the information you have requested because it is internal communication about press lines/ lines to take.

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, there is a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers. It is clearly in the public interest that Ministers can properly provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

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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 202400393372 - Information Released - Binder documents

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58 page PDF

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2.3 MB