2022 exam appeals - internal communications: FOI review

Information requested

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) originally submitted on 19 May:

Please release the following information regarding the 2022 exam appeals:

All internal communication involving the following:

• Ministers
• Special Advisers
• Communication staff
• Learning Directorate staff
• Education Reform Directorate staff

The time frame for this request is April 1, 2022 - present. Communication would include, but would not necessarily be limited to: email chains (including attachments), Slack (or similar) messages, Whatsapp (or similar messages) etc.

I have concluded that the original decision should be confirmed, with modifications. I have looked at the information withheld under each of the exemptions and have set out my reasoning below, including my reconsideration of the public interest test where applicable.

Response

I have concluded that the original decision should be confirmed, with modifications. I have looked at the information withheld under each of the exemptions and have set out my reasoning below, including my reconsideration of the public interest test where applicable.

I considered the original steps taken to identify all material within scope of the request. Reviewing their records and discussing with the team, I concluded that correct procedures were followed and the searches and other steps taken to find material were appropriate.

I considered the information where section 38(1)(b) (personal information) of FOISA was applied and can confirm this exemption was applied correctly. 

I can confirm the application of section 25(1) (information otherwise accessible) of FOISA has been applied correctly where all links have been provided to the information.

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 Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view.

I have considered whether disclosing the content of free and frank discussions on the SQA appeals process would substantially inhibit such discussions in the future. These exemptions are subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. While I recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate, I have found that, on balance, the public interest lies in favour of upholding most of the exemptions. 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.

Following my deliberations I am however making additional disclosures which includes text in enclosures 23.1, 24.1 and 36 (pages 104, 106 and 140 of the Index of Enclosures).

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. 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 exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption partially. 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. Whilst the exemptions were not applied unreasonably I have found in favour of the additional release of information in enclosure 1.1 (page 12 of the revised Index of Enclosures).

I also note that you were unhappy with the reasons provided for the delay in responding to the original request. I have reviewed the reasons provided and find that they are sound but apologise again for the delay you experienced. Officials are working to improve processes and learn lessons from this extremely busy period, to ensure that a more effective service is provided in future.

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.

FOI 202300357586 - Information released

File type

139 page PDF

File size

2.2 MB