Publication - FOI/EIR release

Scottish National Standardised Assessments, correspondence with Professor Sue Ellis: FOI review

Published: 30 May 2019

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

Published:
30 May 2019
Scottish National Standardised Assessments, correspondence with Professor Sue Ellis: FOI review
FOI reference: FOI/201900001392
Date received: 30 Apr 2019
Date responded: 23 May 2019
Information requested

Further to my letter of 30 April 2019, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for any correspondence the Scottish Government has (a) sent to or (b) received from Professor Sue Ellis, in relation to Scottish National Standardised Assessments from May 2015.

Response

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

In response to your original request, exemptions were applied under section 25(1) (information otherwise accessible), section 27(1) (information intended for future publication), section 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), and section 38(1)(b) (personal information). The reasoning followed in applying these exemptions in response to your original request is attached as an annex. The exemptions and the public interest test have been reconsidered as outlined below.

In addition, section 17 (information not held) applied in relation to some of the information specifically requested in your request for review. This is explained as part of the reconsideration of the section 25(1) exemption.

Section 25(1)
In your request for a review, you specifically asked for the application of section 25(1) to the tracked changes and edits referred to on pages 3, 5, 11, 13, 22 and 23 in the document containing the released information. I have taken these to refer to the attachments in email chains 4, 12 and 17.

While the documents attached to email chain 4 were reasonably considered to have been drafts that contained substantively the same information as already published and therefore withheld under section 25(1), the documents themselves had already been deleted when the original request for information was made. The tracked changes and edits are therefore not held (section 17).

In email chain 12, there were no tracked changes and the full substance of the information withheld under section 25(1) has been published. This information continues to be withheld.

In email chain 17, there were no tracked changes and the full substance of almost all of the information withheld under section 25(1) has been published. There were two comments on the draft, to which section 25(1) did not apply. It was not considered that their disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation and that section 30(b)(ii) therefore did not apply. These comments have now been released.

All other information withheld under section 25(1) was also reviewed, is in the public domain, and continues to be withheld.

In your request for review, you also asked for details of any other correspondence between the Scottish Government and Sue Ellis (within the parameters of the original FOI) that was not included in the original response, with links provided to any that may have been made public already. In conducting the review, an attachment to email chain 6 had been missed and the information has now been released. No further correspondence was found in conducting the review. Any correspondence already publicly available is exempt under section 25(1).

Section 27(1)
The information in email chain 3 withheld under section 27(1) is due to be published no later than 12 weeks after the date of your original request. We consider that it continues to be reasonable to withhold the information, rather than release some of this published information before the planned publication date.

Information originally withheld under this section in email chain 19 has now been published and is now withheld under section 25(1).

Section 30(b)(ii)
An exemption under section 30(b)(ii) was applied to some information in response to the original request. Having reconsidered, this exemption does apply because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation as described in the original response. Considering the ‘public interest test’ again, the greater public interest is in preserving the private space to properly consider all options as set out in the original reasoning. This information therefore continues to be withheld.

Section 38(1)(b)
A small amount of information originally withheld under section 38(1)(b), where this identifies an organisation rather than an individual, has now been released.

So that all new information released can be clearly understood in context, this had been provided in the attached with the information originally released.

FOI 201900000649: REASONS FOR NOT PROVIDING INFORMATION IN RESPONSE OF 18 APRIL 2019 TO ORIGINAL REQUEST OF 11 MARCH 2019
Exemptions apply

An exemption under section 25(1) of FOISA (information otherwise accessible) applies to some of the information you have requested. As this information is in the public domain, we are not required to provide it.

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, i.e. names/contact details of individuals, 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.

These exemptions are 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 exemptions.

Exemptions apply, subject to the public interest test

An exemption under section 27(1) of FOISA applies to some of the information requested because we intend to publish that information within 12 weeks of the date of your request. We consider that it is reasonable to withhold the information, rather than release some of this published information before the planned publication date.

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, and this will be met by our planned publication. In the meantime, there is a greater public interest in taking the time necessary to ensure the information has been properly collated and checked before it is published as planned. Also, we see no public interest in disrupting our programme of work to release the information ahead of the intended publication date.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for officials to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of discussions such as those with Professor Sue Ellis will substantially inhibit such discussions in the future, because stakeholders may be reluctant to provide their views fully and frankly if they believe those views are likely to be made public.

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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on Scottish National Standardised Assessments. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence. Premature disclosure is likely to undermine the full and frank discussion of issues, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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 Andrews House
Regent Road
Edinburgh
EH1 3DG