FOI reference: FOI/17/02649
Date received: 3 November 2017
Date responded: 4 December 2017
You asked for details including correspondence (emails, notes, letters, phone calls or other documents including minutes of meetings) regarding John Swinney's meeting with Lady Smith on 15 November 2016.
I enclose some of the information you have requested at Annex A of this letter. However we have applied exemptions under Section 30(b)(i) (free and frank provision of advice), 37(b)(ii) (created by a person conducting an inquiry or arbitration, for the purposes of that inquiry or arbitration) and Section 38(1)(b) (personal data) of FOISA. The reasons why these exemptions apply are explained below.
I have also identified that we hold other pieces of correspondence which would fall within the scope of your request. However, while our aim is to provide information whenever possible, in this instance we are unable to provide the information because an exemption under Section 30(b)(i) (free and frank provision of advice) of FOISA applies to that information. The reason why this exemption applies is explained below.
Reasons for not providing information
Section 38(1)(b) – applicant has asked for personal data of a third party
An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, ie names/contact details of individuals, and disclosing it 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 37(1)(b)(ii) (created by a person conducting an Inquiry or arbitration, for the purposes of that Inquiry or arbitration)
An exemption under section 37(1)(b)(ii) (created by a person conducting an Inquiry or arbitration, for the purposes of that Inquiry or arbitration) of FOISA applies to the information requested. 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 37 of FOISA ensures that where authorities hold information solely because of their involvement in court proceedings, an inquiry or arbitration, they are not required to disclose the information outwith those proceedings.
Section 30(b)(i) – (free and frank provision of advice)
This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice for the purposes of deliberation. This exemption recognises the need for officials to have a private space within which to provide free and frank provision of advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of this advice relating to the Inquiry and the carrying out of Minister's statutory duties under the Inquiries Act 2005, would substantially inhibit the provision of such advice in the future.
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 explore and refine the Government's position.
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
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Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House
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