Cost of buildings under Heat in Buildings Programme: EIR Review

Information requested

Original request - 202400424775

Clarity on figures provided in a previous EIR release on 29th July (ref 202400421303) and advice provided to Patrick Harvie MSP, Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights on the rules, terms and conditions of the Green Public Sector Estates Decarbonisation Scheme (GPSEDS). You also asked for documentation which specifically advised on the valuation of buildings receiving grant and any local consultation on the works.

Response

Further to my letter of 5 September 2024, I have now completed my review of our response to your request under the Environmental Information (Scotland) Regulations 2004 (EIR) for all advice to the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights about the rules terms and conditions of the grant funding schemes (particularly documents advising on whether applications should be required to state the value of buildings and to have shown consultation with the local public).

I have concluded that a modified decision is required. I have made this decision on the basis that I have found one further document that relates to your request. It is also my view that some of the information redacted from two documents provided to you, due to being out of the scope of your request, should be released as I consider that it does in fact relate to your original request.

Request 1
In your EIR request of 30 July 2024, you requested all advice to the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights on the rules terms and conditions of the grant funding schemes (i.e. the Green Public Sector Estate Decarbonisation Scheme (GPSEDS)).

Following my review, I have found a further document that should be provided to you. I also consider that certain redactions made to documents provided to you as part of the original response, on the basis that they were out of scope of your request, are in fact relevant. I am therefore providing you with:

• an email from a Scottish Government official providing the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights with advice which I consider covers eligibility of GPSEDS. This is attached at Annex A.
• advice to the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights, dated 12 June 2023. This is attached at Annex B. You were provided this document as part of your original request, but with paragraphs 8, 12, 13, 14, 15, 16, and 22 redacted. However, I am providing you with this information now as I consider that it is within the scope of your request.
• advice to the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights, dated 21 April 2022. This is attached at Annex C. You were provided this document as part of your original request, but with paragraphs 6-10 redacted. However, I am providing you with this information now as I consider that it is within the scope of your request.

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to one sentence in para 9 of Annex C because it is held within an internal communication shared between Ministers and officials.

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 in briefing. It is clearly in the public interest that Ministers can properly and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. 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.

In addition, some of the information contained in all of these documents continues to be redacted as an exception under regulation 11(2) of the EIRs (personal information) applies because it is personal data of officials under senior civil service level 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.

Finally, some of the information included within these documents is out of scope of your request and has therefore been redacted. This information has been referenced as ‘[redacted – out of scope]’.

Request 2
In your EIR request of 30 July 2024, you also requested that we share all documents provided to the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights about whether applicants to GPSEDS should be asked to state the value of the buildings where works were proposed and the subject of an application.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Under the terms the exception at regulation 10(4)(a) of the EIR regulations (information not held), the Scottish Government is not required to provide information which it does not have.

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 whether applicants to GPSEDS should be asked to state the value of the buildings where works were proposed and the subject of an application, clearly, we cannot provide information which we do not hold.

Request 3
In your EIR request of 30 July 2024, you also requested that we share all documents advising the Minister for Zero Carbon Buildings, Active Travel and Tenants’ Rights about documentation which specifically advised about any local consultation on proposed works.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Under the terms the exception at regulation 10(4)(a) of the EIR regulations (information not held), the Scottish Government is not required to provide information which it does not have.

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 documentation which specifically advised about any local consultation on proposed works, clearly, we cannot provide information which we do not hold.

Further Points Raised in Review Request
In your request for review you stated that within the reply to your EIR request, there does not appear to be any response regarding the issue of consultation and whether there was any requirement or even ask of the applicants to undertake any public consultation.

Having reviewed this point, I am satisfied that this question was responded to as part of the letter you were provided on 28 August 2024 as well as in Annex A of this letter.

In your request for review you also ask whether any advice to the Scottish Ministers has considered the relative benefit of spending on GPSEDS as opposed to spending on other matters (for example, affordable housing, schools or healthcare).

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Under the terms the exception at regulation 10(4)(a) of the EIR regulations (information not held), the Scottish Government is not required to provide information which it does not have.

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 whether any advice to the Scottish Ministers has considered the relative benefit of spending on GPSEDS as opposed to spending on other matters, clearly, we cannot provide information which we do not hold.

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 202400429963 - Information Released - Annex

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