- 21 Jun 2018
FOI reference: FOI/18/00416
Date received: 9 February 2018
Date responded: 18 June 2018
'Any emails that appear in John Swinney's sent items folder in November 2017, December 2017 and January 2018 when the term "FOI" is searched.'
I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for the following request:
In accordance with section 21(4) of FOISA, I have also reached a decision on your request. Please accept our apologies for the delay in responding this has been due to workload and the recent period of adverse weather which affected the organisation.
I can now provide our response to your original request.
In relation to your request regarding emails that appear in John Swinney's sent items folder in December 2017 and January 2018. I have enclosed most of the information you have requested as a separate document to this letter.
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 exemptions under sections 38(1)(a), 38(1)(b), 30(b)(i) and 30(b)(ii) of FOISA apply to that information. The reasons why those exemptions apply are explained below.
The Scottish Government does not have the information, for November 2017, you have asked for because Ministerial Offices routinely destroy records after 3 months, in accordance with our standard records management practice.
This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.
Reasons for not providing information
Exemptions under section 38(1)(a) and 38(1)(b).
An exemption under section 38(1)(a) of FOISA (personal information) has been applied to your name and contact details because it is personal information of which you are the data subject, and so it is subject to the Data Protection Act 1998 (DPA). 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. An exemption under section 38(1)(b)(personal information) applies to some of the information you have requested. This exemption applies because the information is personal data of a third party, names and contact details, 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.
An exemption applies, subject to the public interest test.
Sections 30(b)(i) and 30(b)(ii) – free and frank exchange of views for the purposes of deliberation.
Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final press lines/lines to take are used. Disclosing the content of free and frank briefing material on education policy advice will substantially inhibit such briefing in the future, particularly because discussions on the issue are still ongoing and final decisions have not been taken.
These 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 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 free and frank advice and views to Ministers in press lines/ lines to take. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government's policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.
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
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House