Net Zero 2030 and correspondence regarding Sumitomo: EIR release

Information requested

1. Could you supply all briefings prepared for, all minutes/notes from meetings, all correspondence sent and received by the Government, including internally, about Sumitomo, between November 1 2023 and the date of this FOI?

2. Could you supply all the evidence the Scottish Government gave to the Climate Change Committee for its report into net zero published in March?

3. Could you supply all briefings prepared for Ministers about the Government scrapping its 2030 net zero target?- https://www.scotsman.com/news/politics/climate-change-scotland-scraps-2030-legalclimate-
target-but-sets-out-policy-proposals-4596522

4. Could you supply all minutes/notes from meetings, all correspondence sent and received by the Government, including internally, about the Government scrapping its 2030 net zero targets, between March 1 2024 and the date of this FOI?

5. What date did the Scottish Government decide to scrap its 2030 net zero targets, when did Patrick Harvie and Lorna Slater find out, and could you supply the documentation which shows how the decision was made?

6. Could you supply all modelling undertaken by the Scottish Government to see if the 2030 net zero target could be met, as mentioned by Mairi McAllen here :
https://www.scotsman.com/news/politics/mcallan-admits-taking-cars-off-road-tomorrow-would-havekept-climate-target-intact-4599280
 

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 requests 2 - 6 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 all of 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.

As you have sent this is EIR request has multiple requests within it, we have considered these individually and have responded to each of these below.

1. While our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600. The reason for this is that to locate and retrieve that information we would need to conduct a search of all of the records of the Scottish Government. It may help if I explain that we file our information according to the subject matter, not by reference to Sumitomo. Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. For example, you could specify the subject matter of the correspondence you are interested in, reduce the timeframe of your request, or restrict your request to a specific business area of the Scottish Government, as this would allow us to limit the searches that would require to be conducted. You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

2. Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have. The Scottish Government does not have the information you have requested because the report was formulated independently by the Climate Change Committee, with no input from the Scottish Government.

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. While we recognise that there may be some public interest in information about the Climate Change Committee’s Scotland Progress Report, clearly we cannot provide information which we do not hold.

3. While our aim is to provide information whenever possible, under the exception at regulation 10(4) (b) of the EIRs a public authority may refuse a request for information if it is 'manifestly unreasonable'.

The Scottish Information Commissioner's guidance on the regulation 10(4)(b) exception at http://www.itspublicknowledge.info/Law/EIRs/EIRsExceptions.aspx says that there may “be instances where it is appropriate for the Commissioner to consider the proportionality of the burden on the public authority in terms of the costs and resources involved in dealing with a request when considering the application of this exception”.

In this case, the costs and resources involved in complying with your request would be disproportionate because, to find the information requested, we would need to conduct a search of all of the records of the Scottish Government. Because of the volume of records which would need to be searched, a 20 working days extension to the response deadline (under regulation 7 of the EIRs) would still not make the request manageable. For these reasons, we consider that your request is manifestly unreasonable and so we are refusing it under regulation 10(4)(b).

4. While our aim is to provide information whenever possible, under the exception at regulation 10(4) (b) of the EIRs a public authority may refuse a request for information if it is 'manifestly unreasonable'.

The Scottish Information Commissioner's guidance on the regulation 10(4)(b) exception at http://www.itspublicknowledge.info/Law/EIRs/EIRsExceptions.aspx says that there may “be instances where it is appropriate for the Commissioner to consider the proportionality of the burden on the public authority in terms of the costs and resources involved in dealing with a request when considering the application of this exception”.

In this case, the costs and resources involved in complying with your request would be disproportionate because, to find the information requested, we would need to conduct a search of all of the records of the Scottish Government. Because of the volume of records which would need to be searched, a 20 working days extension to the response deadline (under regulation 7 of the EIRs) would still not make the request manageable. For these reasons, we consider that your request is manifestly unreasonable and so we are refusing it under regulation 10(4)(b).

5. We can confirm that the decision to introduce climate change legislation was made at the meeting of the Cabinet on 12 March 2024, Lorna Slater MSP and Patrick Harvie MSP were sighted of papers to support this decision and were notified of the outcome following deliberation at Cabinet. While our aim is to provide all information whenever possible, in this instance we are unable to provide the information under this part of your request because an exemption under regulation 10 (4) (e): Internal communications applies to it. The reasons for applying this exemption are set out below.

Paragraph 2.1 of the Scottish Ministerial Code provides that "the privacy of opinions expressed and advice offered within the Government should be maintained" at all times. Cabinet papers, including Cabinet minutes, are essential elements which support and assist collective discussion in the private space which Ministers need to reach agreed positions.

The weekly meeting of the Scottish Cabinet is the highest decision-making forum within the Scottish Government, and it follows that all information considered by Cabinet must be handled with great care.

Properly functioning Cabinet processes are generally recognised to be of vital public interest: Cabinet government is based on the principle of collective responsibility, which the Scottish Ministerial Code defines in the following terms:

"The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Government should be maintained. … The internal processes through which aGovernment decision has been made should not normally be disclosed." (Scottish Ministerial Code, 2018 edition, paragraphs 2.1 and 2.4)

Cabinet papers, including Cabinet minutes, are invariably produced on the assumption that they will not be disclosed until a significant amount of time has elapsed (Cabinet papers are currently proactively published after 15 years has passed).

Regulation 10 (4) (e): Internal communications) recognises the need to allow Ministers some private space for discussion. 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.

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 maintaining the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can reach a final decision. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy-/decision-making process.

6. I enclose a copy of the input files for the TIMES model which was the basis for the advice provided to Ms McAllan referred to in your request. TIMES is a model of the energy system and is used by Scottish Government as part of its Climate Plan process to develop scenarios and projections. The files provided were developed to examine a scenario in which the model adhered to the Scottish Government’s statutory emissions reduction targets.

Official advice based on the TIMES model outcomes was provided to Ministers following the TIMES model run. This outlined additional policies which would theoretically be required to meet these outcomes, as referenced by the Cabinet Secretary in The Scotsman. 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 or officials about Climate Change Policy. 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 Climate Change Policy 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.

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.

Due to the size of the files we are unable to upload the documents referred to above.

If you wish to consider, please contact us at the address below and we will be happy to provide.

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