Correspondence relating to A96 corridor review: EIR release

Information requested

“All correspondence that Fiona Hyslop, and her advisors, received or sent relating to the A96 corridor review from 1 August 2024 to date.”

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.

Please refer to Annex A in response to your request for information which includes letter correspondence sent to or from the Cabinet Secretary for Transport, Fiona Hyslop MSP, relating to the A96 Corridor Review from 01 August 2024 to the date or your request, 19 November 2024.

Please refer to Annex B in response to your request for information which includes extracts of briefings sent to or from the Cabinet Secretary for Transport, Fiona Hyslop MSP, relating to the A96 Corridor Review from 01 August 2024 to 19 November 2024.

Please refer to Annex C in response to your request for information which includes email correspondence sent to or from the Cabinet Secretary for Transport, Fiona Hyslop MSP, relating to the A96 Corridor Review from 01 August 2024 to 19 November 2024.

Please refer to Annex D in response to your request for information which includes extracts of meeting minutes sent to or from the Cabinet Secretary for Transport, Fiona Hyslop MSP, relating to the A96 Corridor Review from 01 August 2024 to 19 November 2024.

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. This exception has been applied to Annex A, Annex C and Annex D contained within this response.

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. This regulation has been applied to Parliamentary Questions which are contained in Annex B and this information can be accessed via the Scottish Government’s website online at; https://archive2021.parliament.scot/parliamentary-business.aspx.

We are also unable to provide some of the information requested because of an exception under regulation 10(4)(e) of the EIRs (internal communications) which applies to some of the information requested because it is internal communication between Transport Scotland / Scottish Government officials and Scottish Ministers. This exception has been applied to Annex B and Annex C contained within this response. 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. If released would otherwise impact on effective conduct of public affairs.

A further exception under the same regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal communication of the Scottish Cabinet Ministers about the A96 Dualling Programme. This exception has been applied to Annex B contained within this response.

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 allowing Cabinet Ministers a private space within which issues can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Cabinet Ministers, which in turn will undermine the quality of the decision making process.

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/agendas/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 a Government decision has been made should not normally be disclosed." (Scottish Ministerial Code, 2018 edition, paragraphs 2.1 and 2.4)

Cabinet papers are invariably produced on the assumption that they will not be disclosed until a significant amount of time has elapsed.

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 202400441545 - Information Released - Annex A to D

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