Communication from SOLAR relating to withdrawal from SNSA: FOI release

FOI reference: FOI/18/02243
Date received: 23 August 2018  
Date responded: 20 September 2018

 

 

In August 2018 a communication was sent by Graeme Logan to Directors of Education in Scotland. This letter makes reference to advice from SOLAR that "parents don't have the option to opt out of the assessments".

I would like to request that the government release whatever information it holds on this matter, including (but not limited to):

 

 

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 an exemption under section 36(1) (confidentiality in legal proceedings) and section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

 

I have attached a document providing most of the available information you have requested.

 

 

Section 36(1) – legal advice.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to all of the information requested in your request for “the full legal advice if held” because the information concerned either is legal advice or is intrinsically linked to the process of the provision of legal advice in the context of theconfidential relationship between lawyer and client. Accordingly, disclosure of the content of the legal advice would breach legal professional privilege.

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, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation. The release of such information is likely to be appropriate only in highly compelling cases. This has been recognised by both the Scottish Information Commissioner and the courts.

 

Section 38(1)(b) – personal data.

An exemption(s) under section(s) s 38(1) (b) of FOISA applies to some of the information you have requested because it is personal data of a third party, ie names and contact details of individuals, and disclosing it would contravene the data protection principles set out in article 5(1) of the General Data Protection Regulation (GDPR) and 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.

 

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