Investigation carried out by Environmental Standards Scotland (ESS reference IESS.23.016): EIR release

Information requested

All the information you hold relating to Environmental Standards Scotland’s (ESS) investigation (ESS reference IESS.23.016) into the failure of the Scottish Government to publish an assessment of the climate impact of their Infrastructure Investment Plan, contrary to the duty established in S94A(2) of the Climate Change (Scotland) Act 2009, including but not limited to:

• Copies of all correspondence between the Scottish Government and ESS in respect of the investigation.
• Copies of all notes from meetings between Scottish Government and ESS in respect of the investigation.
• Copies of all notes of telephone calls between Scottish Government and ESS in respect of investigation.

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.

I enclose a copy of some of the information you requested.

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

An exception under regulation 10(4)(d) of the EIRs applies to some of the information you have requested. Regulation 10(4)(d) covers material which is still in the course of completion, unfinished documents and incomplete data.

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 because of the interest in the ESS investigation. However, this is outweighed by the fact that the finished documents are available at Carbon Assessment of the Infrastructure Investment Plan for Scotland 2021-22 to 2025-26 - gov.scot (www.gov.scot).

An exception under regulation 10(4)(e) of the EIRs applies to some of the information you have requested. Regulation 10(4)(e) allows authorities to refuse to disclose 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 release because of the interest in the ESS investigation. However, this is outweighed by the public interest in protecting legal professional privilege.

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 202400404544 - Information Released - Annex

File type

PDF

File size

686.4 kB