Publication - FOI/EIR release

Correspondence between Angela Constance and Lady Dorrian on Cabinet Secretary for Justice and Home Affairs: FOI release

Published: 16 October 2023
Directorate: Justice Directorate
Topic: Public sector
FOI reference: 202300359856
Date received: 2 June 2023
Date responded: 30 June 2023

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

Information requested

Details of any correspondence between Angela Constance and Lady Dorrian since Ms Constance became the Cabinet Secretary for Justice and Home Affairs and any minutes of the meeting between Ms Constance and Lady Dorrian in her role as Chair of the Scottish Sentencing Council on 17 May 2023.

Response

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

With regards the correspondence between the Cabinet Secretary and Lady Dorrian, exemptions under sections 29(1)(a) (policy development) and 30(b)(ii) (free and frank exchange of views) of FOISA applies to some of the information you have requested.

The 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. We recognise that there is some public interest in release because the public may be interested in discussion about the content of proposed legislation between Ministers and members of the judiciary, including Lady Dorrian. However, this is outweighed by the public interest in providing a private space within which Ministers and members of the Judiciary can freely and frankly discuss issues relating to the development of Government policy and proposed legislation.

With regards the minutes of the meeting between the Cabinet Secretary and Lady Dorrian in her role as Chair of the Sentencing Council on 17 May, exemptions under sections 29(1)(a) (policy development), 30(b)(ii) (free and frank exchange of views), 33(1)(b) (prejudice to commercial interests of any person) and 38(1)(b) (personal data) apply to some of the information you have requested.

The exemptions at sections 29(1)(a), 30(b)(ii) and 33(1)(b) 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding these exemptions. While there is some public interest in the content of discussions between the Cabinet Secretary and the Sentencing Council about the detail of development of sentencing guidelines and the sentencing council's work, this is outweighed by the public interest in providing a private space within which Ministers and the Chair of the Sentencing Council can discuss developing policy ahead of it being finalised. Equally, while there is some public interest in seeing the estimated cost of work that the Sentencing Council propose to undertake, this is outweighed by the public interest in ensuring that their commercial interests are not undermined by placing their estimate of this cost in the public domain ahead of that work potentially being put out to commercial tender. Finally, while there is some public interest in seeing the content of discussions between the Cabinet Secretary and Lady Dorrian about the matters relating to the legislative framework within which the Sentencing Council operate, this is outweighed by the public interest in providing a private space within which the Cabinet Secretary and Lady Dorrian can discuss such matters.

The exemption at section 38(1)(b) is not subject to the 'public interest test'.

About FOI

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