Communications with the Scottish Information Commissioner regarding intervention: FOI release

FOI reference: FOI/18/01719
Date received: 20 June 2018
Date responded: 18 July 2018

Information requested

All communication between the Scottish Government and the Scottish Information Commissioner relating to:

1. The letter, published 1/6/17, raising concerns of journalists regarding the Scottish Government's FOI policies
2. The SIC intervention into the Scottish Government's handling of FOI requests, announced in November 2017 and for which the final report was published on 13/6/18

The time frame for this request is 01/06/2017 to 20/06/2018.

Response

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

Some of the information you have requested is available from the website of the Scottish Information Commissioner as follows:

15 November Letter http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=11350&sID=11121

2 February letter http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=11513&sID=11121

Intervention Report http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=11760&sID=11121

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

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 the following sections of FOISA apply to that information:

• section 30(c) (substantial prejudice to effective conduct of public affairs)
• section 38(1)(b) (personal information)

The reasons why those exemptions apply are explained below.

Reasons for not providing information

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, i.e. the names and contact details of individual members of staff, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. 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 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to some of the information requested that is contained in the draft versions of the Scottish Information Commissioner's intervention report. We consider that disclosure of this information would be likely to prejudice substantially the effective conduct of public affairs (i.e. the exercise of the Commissioner's statutory powers of assessment under section 43(3) of FOISA) because it would lead to unwarranted focus on changes made to the report (changes made without reference to the Scottish Government) shortly before the final version was published.

In our view, disclosure would be likely to undermine the credibility and authority of the final, published version of the report and affect the Commissioner's ability to produce intervention reports on such sensitive or controversial matters in future.

This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of the 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 transparency, particularly in the work that the Commissioner does as the regulator of FOI in Scotland, in evidencing that the intervention was carried out objectively and independently, and in understanding fully the processes used by the Commissioner during the intervention. However, we consider that there is a greater public interest in allowing the Commissioner to check facts before finalising such a report without that part of the process necessarily being put into the public domain, and in allowing the Commissioner to work on drafts in a manner which allows him to explore fully the issues in question – and to ensure that the final version is accurate. In short, there is a greater public interest in ensuring that the Commissioner can fulfil his statutory duties effectively and that future interventions are not prejudiced.

An exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) also applies to some of the information that is requested that is contained in a draft interview note. We consider that disclosure of this information would be likely to prejudice substantially the effective conduct of public affairs (i.e. the exercise of the Commissioner's statutory powers of assessment under section 43(3) of FOISA) because the success of an intervention depends to a certain extent on public authorities and their staff working voluntarily with the Commissioner to improve practice. We consider that public authorities and their staff would more reticent in future discussions if they apprehend that draft notes of those discussions (which they have not had an opportunity to comment on) may be disclosed.

As before, we consider that focusing on early drafts would be likely to undermine the credibility and authority of the final, published version of the report, and would therefore affect the Commissioner's ability to produce intervention reports on such sensitive or controversial matters in future.

This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of the 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 transparency, particularly in the work that the Commissioner does as the regulator of FOI in Scotland, in evidencing that the intervention was carried out objectively and independently, and in understanding fully the processes used by the Commissioner during the intervention. However, we consider that there is a greater public interest in allowing the Commissioner to check that his interview notes are accurate before finalising the parts of his report that draw on them without that part of the process necessarily being put into the public domain, and in enabling him to work with public authorities to improve FOI practice without having to resort to the formal procedures for the recovery of information set out in FOISA. Finally, we observe that there is also a public interest in ensuring that any personal information that may be disclosed in response to a request accurately reflects the interviewee's views.

You may wish to note that the final interview notes are disclosed (with the exception of personal information that has been redacted under section 38(1)(b) of FOISA, for the reasons set out above) and we consider that this largely serves the public interest in this information.

About FOI

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

foi-18-01719 part 1.pdf

File type

54 page PDF

File size

6.3 MB

foi-18-01719 part 2.pdf

File type

151 page PDF

File size

4.8 MB

foi-18-01719 part 3.pdf

File type

121 page PDF

File size

4.0 MB