Correspondence to Former Minister for Transport, Jenny Gilruth MSP regarding dualling of A9 or A96: EIR release

Information requested

All documents containing advice to the Minister Gilruth regarding the dualling of the A9 and A96 including the section of the A96 from Inverness Smithton to Auldearn, which includes the Nairn by pass.

Response

As all of 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.

We have interpreted your request as formal advice submitted to former Minister for Transport, Jenny Gilruth MSP regarding the dualling of the A9 or the A96 including the section of the A96 from Inverness Smithton to Auldearn, which includes the Nairn by pass, this includes ministerial submissions and associated emails that contain advice, from Transport Scotland officials to Ms Gilruth during her time in post, from 24 January 2022 to 30 March 2023.

Please refer to Annex A in response to your request for ‘all documents containing advice’ relating to the A9 Dualling Programme. Some of this information has been redacted, please refer to regulation details below in bold.

In regards to the dualling of the A96, under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. We have applied this regulation to submissions and emails that contain advice between Transport Scotland officials and Minister for Transport Jenny Gilruth between 24 January 2022 to 30 March 2023 regarding the dualling of the A96. This information has been released under Environmental Information Regulations which can be accessed via the Scottish Government’s website online at; https://www.gov.scot/publications/ .Please see below relevant reference numbers:

• EIR 202200324323
• EIR 202200305664
• EIR 202300356405
• EIR 202200334072

In addition, some of the information requested regarding the dualling of the A9 has also been released under Environmental Information Regulations which can be accessed via the above link. Please see below relevant reference numbers:

• EIR 202400395137
• EIR 202300344674

Regulation 11(2) of the EIRs (personal information)

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.

Regulation 10(5)(e) of the EIRs (substantial prejudice to confidentiality of commercial information)

An exception under regulation 10(5)(e) of the EIRs (substantial prejudice to confidentiality of commercial information) applies to the information you have requested. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the confidentiality of commercial information provided by the Tenderer and thus cause substantial harm to their commercial interests.

Disclosing this information would be likely to give future tenderers an advantage in the future tender exercise and may also substantially prejudice the tenderer’s ability to submit competitive tenders and so could significantly harm their commercial business.

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 and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender for Transport Scotland’s contracts, to ensure that we are always able to obtain the best value for public money.

Regulation 10(4)(e) of the EIRs (internal communications)

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information requested because it is internal communication and legal advice between Transport Scotland / Scottish Government officials and Scottish Ministers. The reasons why that exception applies are explained below.

This exception is subject to the ‘public interest test’. This means we have taken account of all the circumstances of the case and considered whether, on balance, disclosing the information is outweighed by the public good to be had by applying the exception. We have found that, on balance, the public interest lies in favour of applying the exception and I have outlined the (specific) reasons for this below.

We do recognise that there is some public interest in releasing this information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the ability for Scottish Government, its Ministers and officials to be able to discuss, debate and deliver high quality policy including the decision-making processes in a private thinking space and ensuring it can be conducted in an environment which does not hamper this process. In order to do so they must be able to properly discuss, debate and exchange views on how implementing policy will be undertaken and part of this is the development of briefing material, the deliberations that have taken place and the decisions made until policy is finalised. Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications and therefore it would not be appropriate to release information ahead of that process concluding.

Additionally we recognise there is a public interest in disclosing information such as internal legal advice however, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation. Disclosure would breach 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.

EIR 202400421993 - Information Released - Annex A

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66 page PDF

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2.0 MB