Decision 056/2008 Mr Rob Edwards and the Scottish Ministers
Background reports, memoranda and correspondence considered by the Ministers in response to the Hickman Report on the Inquiry into the M74 Completion Scheme
Reference No: 200501950
Decision Date: 8 May 2008
This page contains the second part of decision 056/2008. To view the first part of this decision, click here.
Section 30(c) – the effective conduct of public affairs
177.In terms of section 30(c) of FOISA, information is exempt if its disclosure would otherwise (i.e. otherwise than under any of the exemptions in section 30(a) or (b) of FOISA) prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs. The exemption in section 30(c) is a qualified exemption, which means that it is subject to the public interest test laid down by section 2(1)(b) of FOISA.
178.As the Commissioner has said in previous decisions (see for example Decision 105/2007 Paul Hutcheon and the Scottish Executive) he expects any public authority citing this exemption to show what specific harm would be caused to the conduct of public affairs by release of the information in question. The risk of damage being caused by release of this information would have to be real or very likely, not hypothetical. The harm caused would require to be significant and not marginal, and it would have to occur in the near (and certainly the foreseeable) future rather than in some distant time.
179.The Ministers have relied on this exemption for withholding the information in document 28.
180.As the Commissioner has indicated above, he will consider only the information that he has found not to be exempt under any of the previously considered exemptions in relation to section 30(c).
181.In providing justification for its reliance on the exemption in section 30(c), the Ministers have advanced the same arguments as those detailed earlier for consideration of section 30(a), 30(b)(i) and 30(b)(ii).The test under section 30(c) is that disclosure of information under FOISA would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.As the Ministers have relied on the same arguments for withholding document 28 under the exemptions in sections 30(a), 30(b)(i), 30(b)(ii) and 30(c), it is difficult for the Commissioner to accept that the same arguments can apply to information which is being withheld under each of these exemptions, given that factors other than the provision of advice or exchange of views should be taken into account in consideration of the application of section 30(c).
182.Having considered the relevant information in document 28, for similar reasons that the Commissioner has expressed in his consideration of this information under the exemptions in sections 30(b)(i) and (ii) and 30(a), the Commissioner does not agree that release of this information would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.The Commissioner does not believe that release of the information would prevent or inhibit Ministers or officials from establishing proper procedure for meetings of Ministers, nor would the advice provided for those meetings be reduced in quality by the release of the information relevant to that meeting in this case.Therefore the Commissioner does not uphold the Ministers' reliance on this exemption.
183.As the Commissioner has found that the exemption in section 30(c) does not apply to the information in document 28, he is not required to go on to consider the application of the public interest test as it relates to this exemption.
Other exemptions cited by the Ministers
184.As the Commissioner has found document 24 to be exempt under sections 36(1) and 30(b)(i) and (ii) he has not considered the other exemptions applied by the Ministers to this document.
DECISION
In this decision, the Commissioner has considered a request for information that he has judged to be environmental information as defined by regulation 2 of the Environmental Information (Scotland) Regulations 2004 (EIRs).As set out above, authorities are obliged to consider such requests in accordance with the requirements of both the EIRs and the Freedom of Information (Scotland) Act 2002 (FOISA).The Commissioner's decision therefore has considered whether the Scottish Ministers (the Ministers) have acted in accordance with each of these laws.
EIRs
The Commissioner has found that some of the information withheld by the Ministers is not excepted under the EIRs and that, in withholding this information, the Ministers failed to comply with the EIRs.The Commissioner's conclusions on the applicability of exceptions contained in the EIRs are set out above and are summarised in Appendix 2 to this decision
FOISA
The Commissioner has also found that the Ministers did not comply with Mr Edwards' request for information fully in accordance with Part 1 of FOISA.By withholding certain information under exemptions in FOISA, the Commissioner finds that the Ministers did not comply with section 1(1) of FOISA. The Commissioner's conclusions on the applicability of the exemptions contained in FOISA are set out above and are summarised in Appendix 3 to this decision.
Steps to be taken
The Commissioner's conclusions under FOISA and the EIRs are the same.Appendices 2 and 3 to this decision set out which information the Ministers must disclose to Mr Edwards in order to comply with this decision.This information must be disclosed to Mr Edwards within 45 days after the date of intimation of this decision notice.
Appeal
Should either Mr Edwards or the Ministers wish to appeal against this decision, there is an appeal to the Court of Session on a point of law only.Any such appeal must be made within 42 days after the date of intimation of this decision notice.
Kevin Dunion
Scottish Information Commissioner
8 May 2008
Appendix
Relevant statutory provisions
Environmental Information (Scotland) Regulations 2004
2Interpretation
(1)In these Regulations –
(…)
"environmental information" has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on -
(a)the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b)factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in paragraph (a);
(c)measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements;
(d)reports on the implementation of environmental legislation;
(e)costs benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c); and
(f)the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);
4Active dissemination of environmental information
(1) A Scottish public authority shall take reasonable steps to organise and keep up to date the environmental information, relevant to its functions, which it holds and at least the types of information listed in paragraph (2), with a view to the active and systematic dissemination of that information to the public and shall make that information progressively available to the public by electronic means unless it was collected before 14th February 2003 and is not available in electronic form.
6Form and format of information
(1)Where an applicant requests that environmental information be made available in a particular form or format, a Scottish public authority shall comply with that request unless –
(…)
(b)the information is already publicly available and easily accessible to the applicant in another form or format.
10Exceptions from duty to make environmental information available–
(1) A Scottish public authority may refuse a request to make environmental information available if-
(a) there is an exception to disclosure under paragraphs (4) or (5); and
(b) in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception.
(2) In considering the application of the exceptions referred to in paragraphs (4) and (5), a Scottish public authority shall-
(a) interpret those paragraphs in a restrictive way; and
(b) apply a presumption in favour of disclosure.
(…)
(4) A Scottish public authority may refuse to make environmental information available to the extent that
(…)
(e) the request involves making available internal communications.
(5) A Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially-
(…)
(b) the course of justice, the ability of a person to receive a fair trial or the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature;
(…)
17Enforcement and appeal provisions
(1)The provisions of Part 4 of the Act (Enforcement)including schedule 3 (powers of entry and inspection), shall apply for the purposes of these Regulations as they apply for the purposes of the Act but with the modifications specified in paragraph (2).
(2)In the application of any provision of the Act by paragraph (1) any reference to –
(a)the Act is deemed to be a reference to these Regulations;
(b)the requirements of Part 1 of the Act is deemed to be a reference to the requirements of these Regulations;
(c)a Scottish public authority is deemed to be a reference to a Scottish public authority within the meaning of these Regulations;
(d)the code of practice under section 60 or 61 of the Act (issue of a code of practice by the Scottish Ministers) is deemed to be a reference to any code of practice issued under regulation 18(1);
(e)sections 29 (formulation of Scottish Administration policy), 31(1) (national security and defence), 32(1)(b) (international relations), 34 (investigations by Scottish public authorities and proceedings arising out of such investigations), 36(1) (confidentiality) and 41(b) (communications with Her Majesty etc. and honours), in section 52(1)(b) (exception from duty to comply with certain notices) of the Act is deemed to be reference to regulations 10(4)(e) and 10(5)(a), (b), (d) and (e);
(f)a notice under section 21(5) or (9) (review by a Scottish public authority) of the Act is deemed to be a reference to a notice under regulation 16(4); and
(g)the period allowed in section 21(1) of the Act is deemed to be a reference to the period specified in regulation 16(4).
Freedom of Information (Scotland) Act 2002
1General entitlement
(1)A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.
2Effect of exemptions
(1)To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that –
(a)the provision does not confer absolute exemption; and
(b)in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.
(2)For the purposes of paragraph (a) of subsection 1, the following provisions of Part 2 (and no others) are to be regarded as conferring absolute exemption –
(a)section 25;
(b)section 26;
(c)section 36(2);
(d)section 37; and
(e)in subsection (1) of section 38 –
(i)paragraphs (a), (c) and (d); and
(ii)paragraph (b) where the first condition referred to in that paragraph is satisfied by virtue of subsection (2)(a)(i) or (b) of that section.
29Formulation of Scottish Administration policy etc.
(1) Information held by the Scottish Administration is exempt information if it relates to-
(a) the formulation or development of government policy;
(b) Ministerial communications;
(c) the provision of advice by any of the Law Officers or any request for the provision of such advice
[…]
(4) In this section-
"government policy" means-
(a) the policy of the Scottish Administration; and
(b) in relation to information created before 1st July 1999, the policy of the Government of the United Kingdom;
"the Law Officers" means the Lord Advocate, the Solicitor General for Scotland, the Advocate General for Scotland, the Attorney General, the Solicitor General and the Attorney General for Northern Ireland;
"Ministerial communications" means any communications between Ministers and includes, in particular, communications relating to proceedings of the Scottish Cabinet (or of any committee of that Cabinet); and
"Ministerial private office" means any part of the Scottish Administration which provides personal administrative support to a Minister.
(5) In the definitions of "Ministerial communications" and "Ministerial private office" in subsection (4), "Minister" means a member of the Scottish Executive or a junior Scottish Minister.
30Prejudice to effective conduct of public affairs
Information is exempt information if its disclosure under this Act-
(a) would, or would be likely to, prejudice substantially the maintenance of the convention of the collective responsibility of the Scottish Ministers
(b) would, or would be likely to, inhibit substantially-
(i) the free and frank provision of advice; or
(ii) the free and frank exchange of views for the purposes of deliberation; or
(c) would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.
36Confidentiality
(1) Information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings is exempt information.
[…]
39Health, safety and the environment
[…]
(2)Information is exempt information if a Scottish public authority –
(a)is obliged by regulations under section 62 (Power to make provision in relation to environmental information) to make it available to the public in accordance with the regulations; or
(b)would be so obliged but for any exemption contained in the regulations.
Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998
Article 4 Access to Environmental Information
Paragraph 3(c):
The request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.
Appendix 2 and 3 can be found in the PDF version of this decision below.
PDF version of decision 056/2008 (324 kb)