Publication - FOI/EIR release

Removal of Glasgow Clyde Board - correspondence: FOI review

Published: 19 Dec 2017
Information request and response under the Freedom of Information (Scotland) Act 2002.
Published:
19 Dec 2017
Removal of Glasgow Clyde Board - correspondence: FOI review

FOI reference: FOI/17/02196
Date received: 29 November 2017
Date responded: 18 December 2017

Information requested

Under FOISA please supply in electronic format, copies of all correspondence, appertaining to the series of meetings that took place between May and September 2015, which involved Scottish Government officials, the funding council, the Glasgow Colleges Regional Board and Angela Constance, in relation to the order laid before the Parliament to remove from office the chair and members of the board of Glasgow Clyde College and to appoint a new chair and members in their place by the then The Cabinet Secretary for Education and Lifelong Learning (Angela Constance):

There has also been extensive correspondence between the funding council, the board and the Scottish Government, in which it was made clear the concerns and they sought to understand the facts. The board was given the opportunity to make its case, and Angela Constance states she considered its responses carefully.

To be clear the request for all correspondence, appertaining to the above includes but is not limited to internal letters, emails, memos, minutes of meetings, external letters to the aforementioned institutions, governmental letters, opinions, telephone records or findings between the SFC/ Glasgow Clyde Board of Management/Glasgow Clyde College/Glasgow Colleges Regional Board/The Scottish Government between the dates of May and September 2015, as per the public record at:

http://www.parliament.scot/parliamentarybusiness/report.aspx?r=10137&i=93553

I appreciate that there may be instances where personal information can and should be redacted, and as such this should not thwart the disclosure of this information.

Response

Further to my letter of 01 November, I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.

I apologise for the delay in responding, this delay was due to your initial email being missed on our systems and also due to the high volume of material we have had to review.

I can now provide our response to your original request.

I enclose a copy of some of the information you requested in the attached pdf files. 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 an exemption applies to that information. The reasons why that exemption(s) applies are explained below.

Some of the information you have requested is available online, for example https://beta.gov.scot/publications/foi-17-02051/. 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(s) listed, then please contact me again and I will send you a paper copy.

Reasons for not providing information

Exemption under section 38(1)(b) of FOISA (personal information).

This applies to some of the information requested because it contains personal data of a third party, i.e. Scottish Government official names below Senior Civil Service and their direct contact details. This information has been redacted throughout the documents which are being released. Disclosing this information would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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 33(1) (b) – commercial interests.

An exemption under section 33(1) (b) of FOISA (commercial interests) applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of all legal companies involved. Disclosing this information would be likely to give the company's competitors an advantage in future similar tendering exercises, which would substantially prejudice their ability to submit competitive tenders and so could significantly harm their commercial business.

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 and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which enter into, Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

Section 30(b)(i) – free and frank provision of advice [in relation to Cabinet/ Ministerial/official discussions and policy formulation/development].

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/other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the removal of Glasgow Clyde Board members will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive or controversial issue such.

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/other officials, as part of the process of exploring and refining the Government's position on the removal of Glasgow Clyde Board members until the Government as a whole can adopt a decision that is sound and likely to be effective. 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. 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(b)(ii) – free and frank exchange of views for the purposes of deliberation [in relation to communications/meetings with external stakeholders].

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/officials to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions with stakeholders on the removal of Glasgow Clyde College Board will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly while these discussions relate to a sensitive issue.

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 Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government's position on the removal of Glasgow Clyde College Board, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, such as that provided by stakeholders Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest. There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual's contribution was released against their wishes.

Section 36(1) – legal advice.

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.

Section 29(1)(a) – formulation or development of government policy.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation of the Scottish Government's policy on the removal of Glasgow Clyde College Board.

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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the removal of Glasgow Clyde College Board will be disclosed in the near future, when it may undermine or constrain the Government's view on that policy while it is still under discussion and development.

Section 30(c) – substantial prejudice to the effective conduct of public affairs [in relation to communications/meetings with external stakeholders].

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers/officials to be able to communicate/meet, often in confidence, with external stakeholders on a range of issues, including the removal of Glasgow Clyde College Board. Disclosing the content of these communications, 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 provide their views fully and frankly if they believe that their views are likely to be made public, particularly while these discussions relate to a sensitive issue. 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.

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 Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government's position on the removal of Glasgow Clyde College Board, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence, such as that provided by stakeholders. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

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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 Andrew's House
Regent Road
Edinburgh
EH1 3DG