Information regarding Newton Stewart Flood Prevention Scheme: EIR Review

Information requested

Original request: 202400435124 

I would like to make a Freedom of Information Request to the Scottish Government linked to the Newton Stewart Flood Prevention Scheme.

In November 2023 the Scottish Government while fulfilling its duties under The Flood Risk Management (Scotland) Act 2009 and in particular its duties under paragraph 6 of Schedule 2 of the aforementioned Act made a decision not to call in the Newton Stewart Flood Prevention Scheme. In essence, this decision meant that a formal local public inquiry would not be held and Scottish Ministers would not have to make a decision on the Scheme.

I would like to be furnished with a copy of all the information the Scottish Government holds relating either directly or indirectly to the decision they took not to call in the Newton Stewart Flood Protection Scheme. This would include all information that the Scottish Government holds relating to both internal and external discussions that were relevant to the Scottish Governments Duties under paragraph 6 of Schedule 2 of the Flood Risk Management (Scotland) Act 2009. I would also like a copy of all documents and information including emails and telephone communications the Scottish Government relied on to help form their decision not to call in the Newton Stewart Flood Protection Scheme. This includes a copy of all communications that took place between the Scottish Government and relevant stakeholders or other interested parties such as Dumfries and Galloway Council and or agents acting on its behalf ,SEPA and relevant objectors to the Newton Stewart Flood Prevention Scheme.

I am not looking for any correspondence or documentation that postdates the Scottish Government Decision Notice sent to Dumfries and Galloway Council dated 8 November 2023. In a genuine effort to reduce your search burden, I am more than willing to discuss this request.

Response

Thank you for your request of 19 October asking us to review our response of 202400435124, I have now completed my review of our response to your request under the Environmental Information (Scotland) Regulations (2004) (EIRs) for;

“I would like to be furnished with a copy of all the information the Scottish Government holds relating either directly or indirectly to the decision they took not to call in the Newton Stewart Flood Protection Scheme. This would include all information that the Scottish Government holds relating to both internal and external discussions that were relevant to the Scottish Governments Duties under paragraph 6 of Schedule 2 of the Flood Risk Management (Scotland) Act 2009. I would also like a copy of all documents and information including emails and telephone communications the Scottish Government relied on to help form their decision not to call in the Newton Stewart Flood Protection Scheme. This includes a copy of all communications that took place between the Scottish Government and relevant stakeholders or other interested parties such as Dumfries and Galloway Council and or agents acting on its behalf ,SEPA and relevant objectors to the Newton Stewart Flood Prevention Scheme.”

I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response. I have reviewed the process undertaken in the handling of your original request, including the searches undertaken for relevant information, the identification of information within the scope of your request and the consideration of the application of relevant exceptions under EIRs. You asked for a review of your request as you do not feel the original response provided all the information you were seeking.

After conducting a review of your case including reviewing the searches conducted. I have concluded that the original decision should be confirmed with modifications.

In conducting my review, I have reconsidered the document previously withheld, revisiting the application of the exception and the public interest test.

I have determined that some of the information previously withheld under regulation 10(4)(e) – Internal Communication should be disclosed as the exception does not apply to all the information contained within the document. Therefore I have enclosed a copy of this information in Annex A.

On reviewing this document I have determined that the exceptions outlined in our original response still apply and information that falls under these exceptions have been exempted.

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 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. However, there is a greater public interest in protecting the process of advising Ministers and ensuring that the Scottish Government is able conduct this aspect of its business effectively. Disclosing this information would prejudice our ability to conduct open and transparent conversations and exchange of views in order make informed decisions. This would not be in the public interest.

Some of the information you have requested is still regarded as personal information and therefore an exception under regulation 11(2) of the EIRs (personal information) applies because it is personal data of a third party (staff names and contact details) 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.

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.

Where information is already publicly available, I have provided you with the links to the relevant websites. If, however, you do not have internet access to obtain this information from the websites listed, then please contact me again and I will send you a paper copy.

Annex B, as outlined in Paragraph 20 of the document can be found on the Dumfries and Galloway Council website - Doc_9_Response_to_Objections_and_Mitigations.pdf (dumgal.gov.uk).

You also asked us to review a reference made within the documents released to determine whether there was any information held in relation to:

“communications which took place between employees of the Scottish Government and potentially representatives of Dumfries and Galloway council outside of the official notification process”.

I can confirm that while our aim is to provide information whenever possible, in this instance the Scottish Government does not hold the information you have requested. Therefore, with respect to your request this is a formal notice under Regulation 10(4)(a) of the EIRs confirming that the Scottish Government does not hold this information.

This exception is subject to the public interest test and whilst we recognise the public interest in Government transparency, we obviously cannot provide information we don’t hold and therefore, the public interest test is in favour of upholding the decision to apply 10(4)(a) of the EIRs.

It may help if I explain that due to a fixed response time by Ministers we encourage local authorities to call us in advance to allow us to meet our obligations within the set timescale, these calls are not recorded.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

EIR 202400412073 - Information released - Annex A

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