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Publication - FOI / EIR Release

Making Eurasian beavers a European Protected Species: EIR release

Information request and response under the Environmental Information (Scotland) Regulations 2004.

FOI reference: FOI/17/02277
Date received: 4 October 2017
Date responded: 31 October 2017

Information requested

Sight of whom legal advice was sought as to the necessity and desirability of making Eurasian beavers a European Protected Species within the meaning of the Habitats Regulations, what this advice was, and the minutes of the meetings in which the current and potential legal status of beavers was discussed.

Response

I enclose a copy of some of the information you have requested.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exceptions under regulation 10(4)(e) internal communications and regulation 10(5)(b) (substantial prejudice to course of justice, fair trial, or criminal or disciplinary inquiry) of the EIRs applies to that information. The reasons why these exceptions apply are explained below.

Reasons for not providing information

Regulation 10(4)(e) – internal communications

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 Scottish Government officials about legal advice on the necessity and desirability of making Eurasia beavers a European Protected Species.

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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on legal advice on the necessity and desirability of making Eurasia beavers a European Protected Species will be disclosed in the near future, when it may undermine or constrain the Government's view on that policy while it is still under discussion and development.

Regulation 10(5)(b) – substantial prejudice to course of justice, fair trial, or criminal or disciplinary inquiry

An exception under regulation 10(5)(b) of the EIRs (substantial prejudice to course of justice) applies to some of the information you have requested because it is legal advice and disclosure would breach legal professional privilege.

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, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

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

Contact

Please quote the FOI reference

Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

Published:
13 Nov 2017
Making Eurasian beavers a European Protected Species: EIR release