Publication - FOI/EIR release

Correspondence with Information Commissioner on Intervention Report: FOI release

Published: 12 Jul 2018

Information request and response under the Freedom of Information (Scotland) Act 2002.

Published:
12 Jul 2018
Correspondence with Information Commissioner on Intervention Report: FOI release

FOI reference: FOI/18/01655
Date received: 14 June 2018
Date responded: 12 July 2018

Information requested

  • Correspondence between the Information Commissioner and the Scottish Government on the former's intervention report into Scottish Government compliance with Freedom of Information legislation.

  • Any briefings given to Ministers from Scottish Government civil servants on the report.

  • Internal correspondence in the Scottish Government communications team on the report.

Response

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

Some of the information you have requested (i.e. the published intervention report) is available from the website of the Scottish Information Commissioner at http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=11760&sID=11121

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website specified, then please contact me again and I will send you a paper copy.

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 exemptions under the following sections of FOISA apply to that information:

  • section 30(b)(i) (free and frank provision of advice)

  • section 30(b)(ii) (free and frank exchange of views)

  • section 30(c) (substantial prejudice to effective conduct of public affairs)

  • section 38(1)(b) (personal information)

The reasons why those exemption apply are explained below.

Reasons for not providing information

An exemption applies.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, ie the names and contact details of individual members of staff, 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 exemption 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 exemption. An exemption applies, subject to the public interest test.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information you have requested (advice about the recommendations in the intervention report). This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the recommendations made by the Scottish Information Commissioner in his intervention report will substantially inhibit the provision of such advice in the future, particularly because those views were given immediately after the recommendations were shared with the Scottish Government and represented an initial, high level assessment of them. Discussions are ongoing in relation to those recommendations, and the Scottish Government's settled public view will be set out in the draft action plan that it is required to produce for the Scottish Information Commissioner by 13 September 2018.

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. 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 a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government's approach to implementing the Scottish Information Commissioner's recommendations, until the Government as a whole can adopt an approach that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision-making process, which would not be in the public interest.

An exemption applies, subject to the public interest test.

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested (press lines and briefing on the handling of the Scottish Information Commissioner's intervention report). These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final press lines are used. Disclosing the content of free and frank briefing material on the Scottish Information Commissioner's intervention report will substantially inhibit such briefing in the future, particularly because these discussions relate to the handling of a sensitive issue, i.e. the response to an investigation by the Scottish Information Commissioner into the FOI practices of the Scottish Government.

These exemptions are 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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, there is a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers in briefing for press lines. It is clearly in the public interest that Ministers can properly respond to the intervention report. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exemption applies, subject to the public interest test.

An exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to some of the information requested that is contained in the draft versions of the Scottish Information Commissioner's intervention report. We consider that disclosure of this information would be likely to prejudice substantially the effective conduct of public affairs (i.e. the exercise of the Commissioner's statutory powers of assessment under section 43(3) of FOISA) because it would lead to unwarranted focus on changes made to the report (changes made without reference to the Scottish Government) shortly before the final version was published.

In our view, disclosure would be likely to undermine the credibility and authority of the final, published version of the report and affect the Commissioner's ability to produce intervention reports on such sensitive or controversial matters in future.

This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of the 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. We recognise that there is a public interest in transparency, particularly in the work that the Commissioner does as the regulator of FOI in Scotland, in evidencing that the intervention was carried out objectively and independently, and in understanding fully the processes used by the Commissioner during the intervention. However, we consider that there is a greater public interest in allowing the Commissioner to check facts before finalising such a report without that part of the process necessarily being put into the public domain, and in allowing the Commissioner to work on drafts in a manner which allows him to explore fully the issues in question – and to ensure that the final version is accurate. In short, there is a greater public interest in ensuring that the Commissioner can fulfil his statutory duties effectively and that future interventions are not prejudiced.

About FOI

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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