Correspondence regarding the Deposit Return Scheme and agreement with BIFFA plc: EIR release

Information requested

All notes, memos, submissions or documents passing between officials and Ministers in relation to the decision not to proceed with the Deposit Return Scheme in Scotland.

And all documents relating to any security assurance or other form of comfort provided by the Scottish Government to BIFFA plc. (or the company or companies within the BIFFA plc group that was the contracting party to the contract issued by Circularity Scotland for the Deposit Return Scheme).

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 exception 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 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 disclosingthe 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, 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.

Question 1

I have included copies of the information you have requested in Annex B.

On reviewing materials within the scope of your request, exceptions have been applied in line with the EIRs. The exceptions applied can be found in Annex A.

Question 2

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. This is because the Scottish Government gave no security assurance or other form of comfort to Biffa (being the contracting party to the contract issued by Circularity Scotland). However, in order to provide assistance in relation to your request, we are providing a copy of a letter which was issued to Biffa’s CEO in May 2022, which set out the Scottish Government’s commitment to DRS and CSL and I have included this at Annex C.

This exception is subject to the ‘public interest test’. It is important to note that although we do not hold the information and have applied Regulation 10(4)(a) – information not held, it is a requirement that we have to apply the public interest test.

Under regulation 5(1) of the EIRs, a Scottish public authority that holds environmental information must make it available when requested to do so. This duty is not absolute. In some cases, information is excepted from disclosure, under regulations 10 and 11 of the EIRs. However, all of the exceptions in regulation 10 (and parts of regulation 11) are subject to a public interest test. To clarify, even though we do not hold the information, because we are using EIRs Exception 10(4)(a) in response to your request, we are required to apply a public interest test.

Guidance can be found in the Key Concepts section under ‘Information Not Held’ and ‘The Public Interest Test’ in the attached Scottish Information Commissioner Briefings and Guidance document.

Further guidance on the public interest test can also be found on page 8 of the Scottish Information Commissioner guidance.

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 202400407353 - Information Released - Annex A, B and C

File type

63 page PDF

File size

591.1 kB