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Decision 255/2025

Decision 255/2025:  Ministerial Submission concerning deer management

Authority:  Scottish Natural Heritage
Case Ref:  202500277
 

Summary

The Applicant asked the Authority for a specific Ministerial Submission concerning options for state intervention in the context of deer management in Scotland. The Authority withheld the information on the basis that it comprised internal advice to Scottish Ministers, where the public interest favoured having a private space in which to discuss policy in the process of development.  The Commissioner investigated and found that the Authority had not been entitled to withhold the information under the exception claimed, and he required the Authority to make it available to the Applicant.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002[1] (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 39(2) (Health, safety and the environment); 47(1) and (2) (Application for decision by Commissioner).

The Environmental Information (Scotland) Regulations 2004[2] (the EIRs) regulations 2(1) (definition of “the Act”, “applicant”, “the Commissioner” and paragraphs (a) and (c) of “environmental information” (Interpretation); 5(1) (Duty to make environmental information available on request); 10(1), (2) and (4)(e) (Exceptions from duty to make environmental information available); 17(1), (2)(a) and (b) (Enforcement and appeal provisions).

Background

  1. On 2 October 2024, the Applicant made a three-part request for information to the Authority.  Only the first part of the Applicant’s information request, set out below, is the subject of this Decision Notice:

    “The Ministerial Submission dated 16 June 2023 and authored by [the Authority] which referred to options for state intervention in the context of deer management in Scotland [Note – this submission is referenced in a document entitled ‘DEER: PRIMARY LEGISLATIVE CHANGE’ obtained under a Freedom of Information Request from [the Authority].]”

  2. The Authority responded on 24 October 2024, having considered the request under the EIRs. The Authority withheld the Ministerial Submission under regulation 10(4)(e) of the EIRs on the basis that it was internal advice from Scottish Government officials to Ministers, discussing policy in the process of development.  It concluded that the public interest favoured maintaining the exception due to the need for public bodies to have space to exchange views and information on developing areas of work.
  3. On 28 October 2024, the Applicant wrote to the Authority requesting a review of its decision.  The Applicant stated that he was dissatisfied with the decision because, in a response to a separate information request, the Authority had previously released a document which made repeated reference to the content of the Ministerial Submission requested.  In his view, both that document and the one he had requested here clearly contained internal advice and exchanges of views, and it would be inconsistent to disclose one and not the other.  The Applicant also argued that the public interest in knowing why Ministers were not heeding advice from a regulatory body [the Authority] favoured disclosure of the information.
  4. The Authority notified the Applicant of the outcome of its review on 21 November 2024, fully upholding its original decision.  It explained there was a need to allow advice to be given and explored with Ministers that was not then made publicly available: this was not uncommon, and was required for policy development to happen in an informed way, allowing Ministers to take into account multiple different considerations and viewpoints.
  5. On 19 February 2025, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  By virtue of regulation 17 of the EIRs, Part 4 of FOISA applies to the enforcement of the EIRs as it applies to the enforcement of FOISA, subject to specified modifications.  The Applicant stated that he was dissatisfied with the outcome of the Authority’s review because it did not appear to acknowledge the substantive points made in his request for review regarding the information previously released.  He also believed the public interest favoured disclosure and, in this regard, he referenced a meeting of the Rural Affairs and Islands Committee of 29 January 2025 which had taken the unusual step of undertaking scrutiny on deer management before a Bill had been introduced.

Investigation

  1. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
  2. On 12 March 2025, the Authority was notified in writing that the Applicant had made a valid application and it was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information and the case was subsequently allocated to an investigating officer.
  3. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions.  These focussed on the Authority’s justification for its reliance on regulation 10(4)(e) to withhold the information, including consideration of the public interest test.

Commissioner’s analysis and findings

  1. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.

Handling in terms of the EIRs

  1. The Authority considered the Applicant’s request in accordance with the EIRs, on the basis that the information requested was environmental information, as defined in regulation 2(1) of the EIRs.
  2. Where information falls within the scope of this definition, a person has a right to access it (and the public authority has a corresponding obligation to respond) under the EIRs, subject to the various restrictions and exceptions contained in the EIRs.
  3. The Authority submitted that the information related to deer management, woodland and the natural environment, and to the measures and proposals relating to such matters.  As such, it considered that paragraphs (a) and (c) of regulation 2(1) applied.
  4. The Commissioner accepts that the request related to the state of the elements of the environment described in paragraph (a), in particular land, landscape, natural sites and biodiversity, and any measures or activities in paragraph (c) likely to affect, or designed to protect, these.  As such, the Commissioner is satisfied that the information requested by the Applicant falls within the definition of environmental information set out in regulation 2(1) of the EIRs, in particular paragraphs (a) and (c) of that definition.

Section 39(2) of FOISA – Environmental information

  1. The Authority confirmed that it wished to rely upon section 39(2) of FOISA.  The exemption in section 39(2) of FOISA provides, in effect, that environmental information (as defined by regulation 2(1) of the EIRs) is exempt from disclosure under FOISA, thereby allowing any such information to be considered solely in terms of the EIRs.  In this case, the Commissioner accepts that the Authority was entitled to apply this exemption to the information withheld under FOISA, given his conclusion that it is properly classified as environmental information.
  2. The Authority submitted that there was no public interest in dealing with the same request under two different regimes, or in using public sector resources to duplicate effort.  It considered the public interest in maintaining the exemption in section 39(2) of FOISA outweighed that in considering the request under FOISA.
  3. As there is a statutory right of access to environmental information available to the Applicant in this case, the Commissioner accepts, in all the circumstances, that the public interest in maintaining this exemption (and responding to the request under the EIRs) outweighs any public interest in disclosing the information under FOISA.  Both regimes are intended to promote public access to information and there would appear to be no reason why (in this particular case) disclosure of the information should be more likely under FOISA than under the EIRs.
  4. The Commissioner therefore concludes that the Authority was correct to apply section 39(2) of FOISA and consider the Applicant’s information request under the EIRs.

Regulation 5(1) – Duty to make available environmental information on request

  1. Regulation 5(1) of the EIRs requires a Scottish public authority which holds environmental information to make it available when requested to do so by any Applicant.  This obligation relates to information that is held by an authority when it receives a request.
  2. On receipt of a request for environmental information, therefore, the authority must ascertain what information it holds falling within the scope of the request. Having done so, regulation 5(1) requires the authority to make that information available, unless a qualification in regulations 6 to 12 applies (regulation 5(2)(b)).
  3. Under the EIRs, a Scottish public authority may refuse to make environmental information available if one or more of the exceptions in regulation 10 applies, but only if, in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception.

Regulation 10(4)(e) – Internal communications

  1. At review stage, the Authority withheld the information requested under regulation 10(4)(e) of the EIRs.
  2. Regulation 10(4)(e) provides that a Scottish public authority may refuse to make environmental information available to the extent that the request involves making available internal communications.
  3. As with all of the exceptions contained within regulation 10, a Scottish public authority applying this exception must interpret it in a restrictive way (regulation 10(2)(a)) and apply a presumption in favour of disclosure (regulation 10(2)(b)).  Even where the exception applies, the information must be disclosed unless, in all the circumstances, the public interest in making the information available is outweighed by that in maintaining the exception (regulation 10(1)(b)).

The Applicant’s submissions on regulation 10(4)(e)

  1. In his application to the Commissioner, the Applicant submitted that he found it difficult to reconcile the Authority’s refusal to disclose the information, given it had previously released a document which made repeated reference to the contents of the Ministerial Submission requested here.
  2. The Applicant stated that he could see no discernible difference between the internal advice for Scottish Ministers contained in the previous disclosure and the Ministerial Submission which had been refused.  In his view, both documents clearly contained “internal advice from Scottish Government officials to Ministers discussing policy in the process of development” and constituted an exchange of views and information on “developing areas of work”.  He argued that it would be inconsistent to disclose one and not the other.
  3. The Applicant was further dissatisfied that the Authority’s review outcome had failed to acknowledge the substantive points set out in his request for review.

The Authority’s submissions on regulation 10(4)(e)

  1. In its submissions to the Commissioner, the Authority explained it was established by the Natural Heritage (Scotland) Act 1991[3], section 2(1) of which set out its functions, including its role as statutory natural heritage adviser to the Scottish Government (section 2(1)(a)). It explained it also had statutory duties under the Deer (Scotland) Act 1996[4], as set out in sections 1(1) and 2(1) of that Act.
  2. Given its formal advisory role on nature and nature conservation matters, and its regulatory role in deer management, the Authority considered that its correspondence with the Scottish Government, in the course of seeking and providing advice and liaison on deer management, could be deemed to be internal correspondence.
  3. The Authority submitted that the information requested was an internal Scottish Government document containing advice to Ministers, seeking their view on options and making recommendations.  It acknowledged that some of the information in the document had been partially paraphrased or referred to elsewhere, arguing that this was not the same as the text of the formal advice to Ministers.  The Authority confirmed that the advice to Ministers was not publicly available.
  4. The Authority stated that the document had been shared with it in the context of its roles as statutory natural heritage advisor to, and regulator on behalf of, the Scottish Government.  It understood, from the document’s distribution list, that the Scottish Government might have circulated the document internally, and confirmed that the Authority itself had not shared the document externally or made it publicly available.
  5. The Authority submitted that all parts of the document related to the draft Natural Environment (Scotland) Bill which was still progressing through parliamentary process.  It submitted that there were likely to be amendments to the Bill as it moved to Stage 2 and to being debated in the Scottish Parliament.  The document was therefore still live advice to Ministers, which the Ministers might choose to revisit in the course of the draft Bill.
  6. In light of this, the Authority believed it was important to consider the document as a whole, and it was not possible to meaningfully redact the document without compromising the status of the advice.  It confirmed it wished to continue to rely on regulation 10(4)(e) to withhold all of the information requested.

The Commissioner's view on regulation 10(4)(e)

  1. The Commissioner has considered the submissions from both the Applicant and the Authority, along with the withheld information itself.
  2. For the information to fall within the scope of the exception in regulation 10(4)(e), it need only be established that the information is an internal communication. The Commissioner must therefore satisfy himself whether the information under consideration here, which was authored, and shared with the Authority, by the Scottish Government, can be deemed to be an internal communication for the purposes of regulation 10(4)(e).  He is also required to interpret the exception in regulation 10(4)(e) in a restrictive way and to apply a presumption in favour of disclosure when considering the exception.
  3. The Commissioner must therefore decide whether the withheld information, in this case, would be deemed to be an internal communication.
  4. The Commissioner notes that, as per section 1 of the Natural Heritage (Scotland) Act 1991, the Authority is a body set up and funded by the Secretary of State to undertake the functions of natural heritage described in section 2 of that legislation.  He also notes the Authority’s regulatory role, aims and functions, as set out in sections 1 and 2 of the Deer Scotland Act 1996.
  5. The Commissioner further notes that the Scottish Government considers the Authority to be an Executive Non-Departmental Public Body (NDPB), the characteristics and accountability of which are set out in the Scottish Government’s Guide to Public Bodies in Scotland[5].  This explains that one of the functions of an Executive NDPB is to provide independent, expert advice to Ministers, where there is a need to do so.
  6. The Commissioner recognises that the Authority undertakes a formal advisory role (to Ministers) on nature and conservation matters, alongside its regulatory role in deer management (and other aspects of the natural environment).  Notwithstanding this, the Commissioner is satisfied that the Authority is a corporate body in its own right, with its own legal personality, and is not part of the Scottish Administration as defined in the Scotland Act 1988[6].
  7. Having examined the withheld information itself, the Commissioner notes that it was circulated to individuals within the Scottish Government, in addition to two Executive NDPBs (neither of which was the Authority).  He can see nothing in that information, or in the submissions provided by the Authority, to support and evidence the Authority’s position that the information was shared with it for the purpose of seeking and obtaining advice and liaison on deer management, in the manner claimed by the Authority.  The information does not contain, nor was it accompanied by, any specific request or instruction to the Authority, seeking its advice and/or views in the capacity of its roles described above.
  8. In light of this, the Commissioner Is not satisfied that the information can be considered to be an internal communication in the sense of being shared within a discrete authority, by the Scottish Government, for the purposes of seeking the Authority’s views in its formal advisory role on nature and nature conservation matters, or in its regulatory role in deer management.
  9. The Commissioner recognises that there may be cases where communications between two or more separate public authorities may be capable of being considered as internal communications for the purposes of regulation 10(4)(e).  More specifically, he recognises that this may, depending on the circumstances and the communications under consideration, be the case in the context of the relationship between the Authority and the Ministers.  However, he expects an authority to be able to demonstrate relevant aspects of the administrative and legal relationship between the two bodies to support and evidence why the specific communications in question, which have been shared, should be considered to be internal.  The Commissioner is not satisfied that the Authority has demonstrated this to be the case here.
  10. in this case, therefore, Commissioner must conclude that the information in question cannot be considered to be an internal communication for the purposes of regulation 10(4)(e) of the EIRs.
  11. As the Commissioner has found that the exception in regulation 10(4)(e) of the EIRs is not engaged for the information withheld in this case, he is not required to go on to consider the public interest test in regulation 10(1) of the EIRs.
  12. In conclusion, the Commissioner finds that, in wrongly withholding the information under regulation 10(4)(e), the Authority breached regulation 5(1) of the EIRs.  He requires the Authority to disclose the information to the Applicant.

Decision

The Commissioner finds that the Authority complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) but failed to comply with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the Applicant.

The Commissioner finds that, by relying on section 39(2) of FOISA and considering the Applicant’s request under the EIRs, the Authority complied with Part 1 of FOISA.

However, the Commissioner also finds that the Authority was not entitled to rely on regulation 10(4)(e) to refuse to make available the information requested and, in that respect, it failed to comply with regulation 5(1) of the EIRs.

The Commissioner therefore requires the Authority to make available to the Applicant the information found to have been wrongly withheld by 11 December 2025.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to 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.

Enforcement

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply.  The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

 

Euan McCulloch

Head of Enforcement

 

27 October 2025