- 7 Sep 2018
FOI reference: FOI/18/02110 and FOI/18/02111
Date received: 3 August 2018
Date responded: 3 September 2018
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)
You might also wish to note that a request that focused on the intervention report itself, was published on our website on 12 July: /publications/foi-18-01655/
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.
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
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House