Publication - FOI/EIR release

Communications in relation to Scottish Information Commissioner intervention: FOI release

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

Published:
7 Sep 2018
Communications in relation to Scottish Information Commissioner intervention: FOI release

FOI reference: FOI/18/02110 and FOI/18/02111
Date received: 3 August 2018 
Date responded: 3 September 2018
 
Information requested

FOI-18-02110
All internal communications held by the FOI unit involving Scottish Ministers, Special Advisers and communication staff in relation to the letter, published 1/6/17 by CommonSpace and The Ferret and widely covered both in the media and parliament, raising concerns of journalists regarding the Scottish Government's FOI policies. The time frame for this request is 01/06/2017 to 20/06/2018.
FOI-18-02111
All internal communications held by the FOI unit involving Scottish Ministers, Special Advisers and communication staff in relation to 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 in addition to this letter. Due to the interrelationship between your two requests, i.e. the intervention being in part framed from the journalist’s joint letter, we have combined our responses into one letter and one set of documents by way of an information release. For ease of reference:
FOI-18-02110 is from pages 1 - 33
FOI-18-02111 is from pages 34 - 203
 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(b)(i)(free and frank provision of advice)
  • section 30(b)(ii)(free and frank exchange of views)
  • section 38(1)(a)(personal information for which you are the data subject)
  • section 38(1)(b)(personal information)
The reasons why those exemptions apply are explained below.
Some of the information that is within the scope of your request, the published intervention report for instance, is available from the website of the Scottish Information Commissioner at http://www.itspublicknowledge.info/nmsruntime/saveasdialog.aspx?lID=11760&sID=11121
You might also wish to note that a request that focused on the intervention report itself, was published on our website on 12 July: https://beta.gov.scot/publications/foi-18-01655/
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 
An exemption applies

An exemption under section 38(1)(a) of FOISA applies to some of the information requested because it is personal information of which you are the data subject, and so it is subject to 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 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, ie 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 applies, subject to the public interest test.

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 (press lines, briefings and certain discussions around the intervention). 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 are used. Disclosing the content of free and frank briefing material on the Scottish Information Commissioner’s intervention will substantially inhibit such briefing in the future, particularly because these discussions relate to the handling of a sensitive issue, i.e. the response to an investigation by the Scottish Information Commissioner into the FOI practices of the Scottish Government.

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 briefing for press lines. It is clearly in the public interest that Ministers and officials can properly respond to the intervention. 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.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses

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 3