Scottish Information Commissioner intervention: FOI review

FOI reference: FOI/18/02110 and FOI/18/02111 Reviews  
Date received: 6 September 2018 
Date responded: 4 October 2018

 

 

FoI/18/02110

All internal communications held by the FOI unit involving Scottish Ministers, Special Advisers and communication staff in relation to the letter, published 1/6/17 by CommonSpace and The Ferret and widely covered both in the media and parliament, raising concerns of journalists regarding the Scottish Government's FOI policies. The time frame for this request is 01/06/2017 to 20/06/2018.

FoI/18/02111

All internal communications held by the FOI unit involving Scottish Ministers, Special Advisers and communication staff in relation to the SIC intervention into the Scottish Government's handling of FOI requests, announced in November 2017 and for which the final report was published on 13/6/18. The time frame for this request is 01/06/2017 to 20/06/2018.

In your request for a review, you indicated that you wished us to reconsider every instance where the exemptions in section 30(b)(i) (free and frank provision of advice) and section 30(b)(ii) (free and frank exchange of views for the purposes of deliberation) had been relied upon. You also asked that your personal data, which was withheld under section 38(1)(a), be disclosed. In reviewing our response, I have also examined the other exemptions which were applied and I have reconsidered whether information that was identified as being out of scope in fact fell within the scope of your request.
 

 

I apologise for the delay in responding to your request for a review, and acknowledge that it should have been dealt with more quickly. It took considerably longer than expected to reconsider each instance of the exemptions that you mentioned, as well as identifying your personal data throughout the information that we had identified, but as a consequence of the review, we are now disclosing a substantial further quantity of information to you.

 

I have concluded that the original decision should be confirmed with modifications, for the following reasons.

Scope

As I mentioned above, I have considered whether the information that was originally identified as being out of scope in fact fell within the scope of your request. I have concluded in three cases that the information is in fact within the scope of your request. Accordingly, I enclose a copy of some of that information (Documents 25, 25A, 30 and 30A). 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 the following exemption(s) apply:

 

The reasons why these exemptions apply are set out below.

Additionally, I have concluded that some of the information that has now been identified as being within the scope of your request was published on 12 July 2018 on our website at /publications/foi-18-01655/ in response to an earlier FOI request. Additionally, the statement on the intervention report made by the Minister for Parliamentary Business on 13 June 2018 is available on the Scottish Parliament website at: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11598&i=105116. 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 that website, then please contact me again and I will send you a paper copy.

Application of exemptions.

Section 30(b)(i) and (ii).

I have reconsidered each instance where these exemptions have been relied upon in responding to your requests. In a number of cases, I have concluded that the exemptions have not been applied correctly. Accordingly, I enclose fresh copies of the following information as we are no longer relying on section 30(b)(i) or (ii) in relation to it:

 

FoI/18/02110

 

 

FoI/18/02111

 

 

In relation to the following information, I have concluded that section 30(b)(i) or (ii) should be applied to a more limited extent, and so I enclose fresh copies of the following information:

 

FoI/18/02110

 

 

FoI/18/02111

 

 

I would otherwise confirm the application of the section 30(b)(i) and (ii) exemptions. Further reasons for applying these exemptions are set out below.

 

Section 38(1)(a).

In your request for a review, you asked that your personal data, where it had been redacted in the original response, should be disclosed in the response to your request for a review. You indicated that you “would like to see all of the attached documents with my name and details included”.

I have interpreted this as an expression of dissatisfaction with the way in which we have applied the exemption in section 38(1)(a) (requester’s own personal data). It was applied in relation to the information in a single document (FoI/18/02111 Document 7A), in order to redact your name where it appeared in the description of a number of individual FOI cases. As you may be aware, the Scottish Information Commissioner has recently issued new guidance on the application of the section 38 exemptions, and I have considered this carefully in relation to your request for a review (specifically paragraphs 35 to 47).

I consider that the exemption in section 38(1)(a) was correctly applied to your personal information, and I would uphold its application in these circumstances. Were I to proceed to treat your request for your personal information as a subject access request, that would not achieve your intended effect of having your name included in the information released in response to this request. Given your express written request that we include your personal information in the information released, I have decided instead to release the information to you outwith FOISA, and it is included in the copy of Document 7A that accompanies this letter.

Information withheld in error.

On review, I have identified some information that was withheld in responding to your request, either because it was thought that the information had previously been disclosed in response to FoI/18/01655 on 12 July 2018, and hence was otherwise accessible to you, or through administrative error in compiling the information for release.
Accordingly, I enclose a copy of some of that information (Documents 11A, 44, 46A, 52, 59 and 80). 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 the exemption in section 38(1)(b) (personal information) applies, for the reasons given in below.

I apologise for the failure to disclose this information to you in our initial response.

 

 

Section 38(1)(b) (personal information).

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 other third parties who have corresponded with the Scottish Government, 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.

Section 30(b)(i) and (ii) (free and frank provision of advice; free and frank exchange of views for the purposes of deliberation).

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, as follows:

 

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. It is clearly in the public interest that Ministers can properly respond to the intervention report, participate in Parliamentary debates about the intervention, and make decisions about individual FOI requests. They need full and candid advice from officials to enable them to do so. 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.

Section 30(c) (substantial prejudice to the effective conduct of public affairs).

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 version 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 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.

Section 30(c) (substantial prejudice to the effective conduct of public affairs).

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 draft interview . 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).

While the Commissioner has formal enforcement powers which he can use, his office has acknowledged that the success of interventions depends, to a certain extent, on public authorities and their staff working voluntarily with the Commissioner to improve practice. We consider (as the Commissioner’s office also did in responding to a request for these draft interview notes here) that public authorities and their staff would be much more reticent in future about speaking to the Commissioner or his staff if drafts of those interviews (which they had not had an opportunity to comment on) were to be disclosed.

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 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 that his notes of interviews are accurate before finalising any report without that part of the process necessarily being put into the public domain, and in allowing the Commissioner to work with public authorities, without using very expensive and lengthy formal measures, to improve FOI practice. 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. We would also take the view that the public interest is, to a large extent, served by disclosing the final versions of the notes (as the Commissioner did in response to the FOI response linked above) and by publishing the report itself.

 

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