- 21 Aug 2018
Date received: 19 July 2018
Date responded: 20 August 2018
An exemption(s) under sections 30 (b) (i), 30(c) and s38 (1) (b) of FOISA applies to some of the information you have requested.
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. 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 officials before the Scottish Government reaches a settled public view.
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. 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.
Section 30(c) – substantial prejudice to the effective conduct of public affairs
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies some the information requested. It is essential for Ministers to be able to communicate and meet, often in confidence, with external stakeholders on a range of issues, including in this case with Bield about their care home closures and transfers. Disclosing the content of the information about these meetings, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to participate in meetings or provide their views fully and frankly if they believe that their views are likely to be made public, particularly while these discussions are still on-going and decisions have not been taken, and/or these discussions relate to a sensitive or controversial issue such as the Bield care homes. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions.
An exemption under section 38(1)(b) of FOISA applies to some of the information requested because it is personal data of a third party, including: biographical information, contact details and sensitive personal information, 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.
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