Publication - FOI/EIR release

Changes to FOI in Coronavirus (Scotland) Bill – meetings: FOI release

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

Published:
17 Jun 2020
Changes to FOI in Coronavirus (Scotland) Bill – meetings: FOI release
FOI reference: FOI/202000025364
Date received: 2 Apr 2020
Date responded: 10 Jun 2020
Information requested

This is an FOI request in relation to the Coronavirus (Scotland) Bill. I would like to request the
following material:
1. Details (dates, attendees etc) of all meetings where proposed changes to Freedom of Information rules were discussed
2. Any associated documents from the above meetings (NB this should include minutes - if these do not exist please explicitly say so)

Response

Details (dates, attendees etc) of meetings where proposed changes to FOI rules were discussed
I enclose a copy of some of the information you 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 (the identity of certain attendees at the above meetings) because exemptions under sections 30(c) (substantial prejudice to effective conduct of public affairs) and 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are set out below.

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, i.e. the names of civil servants in grades below the senior civil service, 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(c) (substantial prejudice to 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. This exemption applies because revealing the source of the Scottish Government’s legal advice on the freedom of information provisions in the Coronavirus (Scotland) Bill would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on this matter. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue. 

Information provided outwith FOISA
The following information is provided outwith FOISA in order to give further context to the information disclosed in response to this part of your request. The Scottish Government advised that staff should work from home where possible in the week beginning 17 March 2020. As a result, the number of meetings undertaken by FOI policy officials diminished sharply. In some cases, meetings were replaced by Skype meetings (for example, those set out in the document accompanying this response). While the use of technology to conduct meetings remotely is now increasing, work on the Coronavirus (Scotland) Bill took place in the immediate aftermath of the move to home working when alternative arrangements were still being developed. 

Associated documents
Some of the information you have requested (the list of amendments for Stage 2 of the Bill) is available here: https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/coronavirus-scotland-bill/stage-2/marshalled-list-of-amendments-at-stage-2-coronovirus-scotland-bill.pdf?la=en
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 listed, 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 sections 30(b)(i) (free and frank provision of advice) and 36(1) (confidentiality of communications) of FOISA apply to that information. The reasons why these exemptions apply are explained below. 

Section 30(b)(i) (free and frank provision of advice)
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested (advice given by policy officials on non-Government amendments lodged at Stage 2 of the Bill). 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 and other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on how to respond to non-Government amendments will substantially inhibit the provision of such advice in the future, particularly because it is given at pace for the purpose of enabling Ministers to take immediate decisions in the course of Parliamentary proceedings. It therefore represents an initial contribution to the decision-making process, not the final product.

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 a private space within which officials can provide full and frank advice to Ministers and other officials, as part of the process of exploring and refining the Government’s position on how to deal with non-Government amendments in the course of Parliamentary proceedings. 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. 
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. In addition, the public interest is largely served because the Government's agreed position on those amendments was placed into the public domain when the Minister for Europe and International Development addressed them in the course of the Stage 2 debate (see the Official Report of 1 April 2020 at columns 129 to 133, which is available here: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12602&mode=pdf).

Section 36(1) (confidentiality of communications)
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.
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 and transparent 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.

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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 Andrews House
Regent Road
Edinburgh
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