FOI reference: FOI/17/01876
Date received: 16 August 2017
Date responded: 6 September 2017
All and any correspondence and documents between all and any parties in relation to the erection Of 3 Agricultural Buildings And Workshop/Office/Staff Accommodation Building And Land Engineering (In Part Retrospect) Land 200 Metres South East Of A M Howie Yard, Yettes Road, Dunning for the duration of the case.
As you know, as 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.
If I may in the first instance confirm that some of the information you have requested is available from our website at the following link:Land at Park of Keir PPA-390-2042
You may be aware that 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. As you may know, the DPEA publish to the internet most documents relating to current casework and you can view all the published documentation by accessing the above link. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy of the relevant documents.
An electronic copy of the correspondence is attached below. Documents 16 and 17 under regulation 10(4)(e) are subject to exception, because under regulation 10(4)(e) of the EIR's (internal communications) applies to some of the information requested.
Whilst our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exception under regulation 10(4)(e) (internal communications) of the EIR's applies to that information. The reasons why that exception applies are explained below.
The 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.
Reasons for not providing information
An exception applies.
Regulation 10 (4)(e ) - Internal Communications
We recognize the significant public interest in transparency and accountability in the decision making process in appeals. There is a public interest in understanding how a particular decision was arrived at. There is a particularly strong public interest in ensuring that the planning process is open to public scrutiny. That is already firmly provided for in the appeals process. In addition to such transparency and accountability, the appeals system run by us (in a statutory appeals context) requires to be and is procedurally fair. We conduct a quasi-judicial decision making process requiring procedural fairness to all affected so that all relevant material matters before the decision maker are seen and can be commented on by all relevant parties. The processes in play include ensuring that any material considerations put to the reporter by one party is seen for comment by all and that any material that the reporter her or himself intends to be taken into account is seen for comment by parties.
However, in relation to materials created in the development of planning appeal decisions involve a public interest in protecting them from such strict disclosure provisions where they are drafts or exchanges relating to developing consideration of representations made or internal exchanges within DPEA designed to better or fully inform the appointed Reporter in making procedural decisions or preparing appeal decision notice or reports. There is a strong public interest in ensuring that DPEA will be able to discuss sensitive issues, draft recommendations and responses to representations from parties (separate from the formal response to them), in the knowledge that these discussions would not be placed into the public domain.
The exempt documents in this case relate to an exchange between Scottish Government officials within DPEA with respect to representations received from Roseanna Cunningham MSP, (on your behalf). Both these documents consist of a draft response submitted to DPEA colleagues, seeking comments and inviting suggested alterations to the final response, which at the time of creation would have been considered to be unfinished, in other words, material in the course of completion. Whilst it is the case that the final version of the draft response, (included in the documents released in respect of this request) are, in substance, largely the same as those released, I would contend that at the time these documents were written they would have been considered as drafts and potentially subject to further amendment. It is therefore incidental that the final draft is largely similar to the released version. We consider it imperative, and strongly in the public interest that officials are able to express opinions in a private space without fear of disclosure. Officials would not communicate as freely and openly as required if they considered that any comment would be liable to release and potentially open to interpretation out of context and a distraction from the substantive issues.
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