Children's health and wellbeing census: FOI release

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

Information requested

  1. You asked for correspondence between the Scottish government and Councils on the census matter between those December 2021 and 24 March 2022.
  2. You asked for an unredacted copy of Annex A of FOI 202100260600 as the response to this FOI had been heavily redacted. The S30b redactions in particular are particularly of interest to you, and in the interests of government transparency, and public interest, you asked us to provide you with the same documentation minus the redactions.


I enclose a copy of some of the information you requested.

The answer to your questions are as follows.

For Part 1, while our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing all of the possible information requested would exceed the upper cost limit of £600. The reason for this being is that your request was too wide in scope by the fact that the Scottish Government has corresponded with Councils on a number of various different matters in relation to the Census between December 2021 and 24 March 2022 and to provide you with all of that information is estimated to be too costly.

Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. This could be done by being more specific as to what correspondence you are specifically most interested in (e.g. are you only interested in any correspondence on a specific matter, such as the inclusion of questions in the Census in relation to Relationships and Sexual Health). Or, you could look to reduce the timeframe for which correspondence was to be included as part of your request. You may also find it helpful to look at the Scottish Information Commissioner's 'Tips for requesting information under FOI and the EIRs' on his website at: /YourRights/Tipsforrequesters.aspx.

For Part 2, I attach a modified version of the Annex A document that was included for FoI 202100260600. This attached modified version was reissued in response to the original FoI response being reviewed. After the review, it was still upheld that this modified version of Annex A would have exemptions under section(s) s.30(a), s.30(b)(i), s.30(c), s.33(1)(b), s.36(1), and s.38(1)(b) of FOISA applied to some of the information.

An exemption(s) under section(s) s.30(a) of FOISA applies to some of the information you have requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially the convention of the collective responsibility of Scottish Ministers for the Scottish Government’s policy on the Health and Wellbeing Census. Government in Scotland, as in the rest of the UK, has long worked under the convention that Ministers are collectively responsible for policy/decisions and its delivery. Collective responsibility requires collective discretion, and ensures that Ministers can express their views frankly in internal discussion of an issue while maintaining a united front once decisions have been reached. Disclosing communications between individual Ministers would prejudice substantially the maintenance of the convention.

An exemption(s) under section(s) s.30(b)(i) of FOISA applies to some of the information you have requested. An exemption under section 30(b)(i) exemption in respect of some of the information applies because it is likely that disclosure would likely inhibit substantially the free and frank provision of advice. This exemption recognises the need for Ministers to have a private space within which to seek free and frank advice from officials before the Scottish Government reaches a settled view. Disclosing the content of free and frank advice on sensitive issues in order to inform appropriate decision making will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive and controversial issue.

An exemption(s) under section(s) s.30(c) of FOISA applies to some of the information you have requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on contracts and data processing, 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 the Health and Wellbeing Census. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

An exemption(s) under section 33(1)(b) of FOISA applies to some of the information you have requested as disclosure would (or would be likely to) prejudice substantially the commercial interests of any person or organisation

An exemption(s) under section(s) s.36(1) of FOISA applies to some of the information you have requested. 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.

An exemption(s) under section(s) s.38(1)(b) of FOISA applies to some of the information you have requested. Section 38(1)(b) exemption in respect of the names of the individuals involved in the submissions and responses provided to Ministers, Enclosures 1-14 in the attached PDF document as it is standard practice within the Scottish Government only to release the names of those officials who are Senior Civil Servants. None of the Government officials involved in the submissions and responses to Ministers are Senior Civil Servants and therefore have an expectation of privacy. In addition, given the high profile media coverage of the census, the emotive issues involved and the strong and inflammatory language that has been used by some publicly and in the media, there is a concern that putting the names of the Government officials into the public domain could “cause the employee harm or distress, for example by exposing them to threats or reprisals”, as per paragraph 68 (2nd bullet) and paragraph 84 of the FOISA guidance on the application of Section 38.

Some of these exemptions are subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have found that, on balance, the public interest lies in favour of upholding the exemptions.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at

Index of Enclosures - 202200299353


Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road

Back to top