Publication - FOI/EIR release

Minutes/notes:MSP Cunningham and Duke of Rothesay: FOI Release

Published: 21 June 2018
Directorate: Environment and Forestry Directorate
Topic: Public sector

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

FOI reference: FOI/18/01454
Date received: 22 May 2018
Date responded: 20 June 2018

Information requested

All minutes and notes relating to the meeting between Roseanna Cunningham MSP and HRH Duke of Rothesay which took place on 23 October 2017. Including minutes, notes taken of the meeting, agenda or any other papers pertaining to the meeting including handwritten notes.

Response

Please note the attached documents.

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 30 (b)(i) – Free and frank provison of advice and 30 (b) ii – Free and frank exchange of views of FOISA, Section 41(a) – communications with Her Majesty, the Royal Family or the Royal Household, and Section 38(ii)(b) – applicant has asked for personal data of a third party applies to that information. The reasons why these exemptions apply are explained below.

Reasons for not providing information

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) and 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 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 a wide range of government policy areas will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to sensitive or controversial issues.

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 policy position on a wide range of government policy areas, until the Government as a whole can adopt a policy 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 [policy] 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 policy making process, which would not be in the public interest.

An exemption under section 41(a) of FOISA (communications with Her Majesty, etc.) applies to some of the information requested because it relates to communications with the HRH Duke of Rothesay.

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. However, this is outweighed by the greater public interest in maintaining the long-standing constitutional Convention that correspondence between The Sovereign and the government is confidential in nature. This Convention is an adjunct of the right of The Sovereign to be consulted by her Government, and to advise, encourage and to warn as the circumstances require. The rights of The Sovereign could not be exercised effectively without this expectation of confidentiality and, if the content of these consultations became known, it may serve to undermine the appearance of the political neutrality of The Sovereign.

There is a similar public interest in maintaining the well-established constitutional doctrine that the Heir to the Throne has a right and duty to be instructed in the business of government, in preparation for the time when he will be King. His instruction in the rights that he will exercise as Monarch also depends on the confidentiality and privacy of his communications with Government, which are subject to an expectation of confidence analogous to the Convention of confidentiality that exists between The Sovereign and Government. Removal of the protections mentioned above would restrain The Sovereign and/or Prince of Wales (The Duke of Rothesay) from raising some matters for fear that their views, or even the knowledge that they had expressed his their views to a member of the Government, would ignite controversy. This would not be in the public interest because The Sovereign and/or Prince of Wales (The Duke of Rothesay) would be prevented from discharging their duties by the threat that publicity would undermine the perception of political neutrality which is a foundation of the constitution. More generally, there is a public interest in protecting a channel of communication between the Scottish Government, and the Royal Family and Royal Household. Disclosing the content of such communications, particularly against the wishes of the Royal Family/Household, is likely to mean that such future communications will be less open and less frequent, with less exchange of information on matters of mutual interest, which would not be in the public interest.

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. 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.

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