The new Scottish National Standardised Assessments: FOI review

FOI reference: FOI/18/02277 Review  
Date received: 1 October 2018
Date responded: 29 October 2018

 

 

Further to my email of 1 October, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for all communication sent to or by Graeme Logan regarding the new Scottish National Standardised Assessments.

You requested that the review consider documents attached to email communications but not included with the information provided. You also requested a review of the information not provided to you under sections 30(b) (free and frank advice and exchange of views), 33(1)(b) (commercial interests) and 36(1) (claim to confidentiality of communications).

I have concluded that the original decision should be confirmed, with modifications and will address each point in turn.

 

 

I have reviewed each of the e-mail attachments withheld under section 30 (b) or 38 (1) and in most instances I have judged the exeption to have been applied appropriately.

These exemptions are subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions. I have found that, on balance, the public interest lies in favour of upholding the exemptions. I 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. It is clearly in the public interest that Ministers can properly answer media requests/Parliamentary questions, provide sound information to Parliament (to which they are accountable) and robustly defend the Government’s policies and decisions. 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.In a small number of instances I consider that information contained in these attachments was withheld under section 30(b) innappropriately and I have attached these documents with appropriate redactions at Annex A. I have identified in this document which e-mail chain each document relates to. Please note though that the document attached to email chain 24 has been provided as a separate pdf attachment.

There was also a paper attached within the email in chain 50 with the subject line “Local Authority SNSA Reports”. I have also included this in Annex A. Some of the information within this paper is exempt under section 33(1)(b) of FOISA (commercial interests) and there is more detail on the why this exemption has been applied and the public interest test in such instances in the following two paragraphs.

Section 33(1)(b) – Substantial prejudice to commercial interests.

Some of the information within the scope of your request was withheld under section 33(1)(b) of FOISA. All the information withheld relates to communication with or about the Australian Council for Educational Research (ACER), a company limited by guarantee. Having reviewed the information that has been withheld, I am satisfied that this exemption applies as disclosure of the information concerned would, or would be likely to, prejudice substantially the commercial interests of ACER. Disclosing this information would be likely to place ACER at a disadvantage to its competitors involved in the development and provision assessment and reporting tools and could, therefore, significantly harm their commercial business.

This exemption is also subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is a public interest in disclosing information as part of open and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender, Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

Section 36(1) – Claim to confidentiality of communications.

Some of the information within the scope of your request was withheld under section 36(1) of FOISA. Having reviewed the use of this exemption, I am satisfied that the majority of information that was withheld under section 36(1) was done so appropriately. The information concerned relates specifically to communications with a professional legal advisor at Glasgow City Council, not SOLAR, and their interaction with a client. As such, disclosure of much of the content would represent a clear breach of professional privilege and I therefore consider the use of section 36(1) to have been appropriate.

The application of an exemption under section 36(1) of FOISA is also subject to the ‘public interest test’. Therefore, as part of my review and taking account of all the circumstances of this case, I have, considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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.

There was one instance where section 36(1) was applied incorrectly and where information should have been released. This information was a sentence that was redacted in Graeme Logan’s email of 29 May 2018 at 08:08 to Desmond Bermingham. I have attached that email, with personal data withheld under section 38(1)(b), at annex B.
Section 30(b) – Free and frank provision of advice or exchange of views.

I have reviewed where information was withheld on the basis that its disclosure would, or would be likely to, inhibit the free and frank provision of advice or exchange of views for the purposes of deliberation. In most instances where this exemption has been applied, I have judged it to have been appropriate.

These exemptions are also subject to the ‘public interest test’ in recognition of the importance of open, transparent and accountable government. Therefore, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions and found that, on balance, the public interest lies in favour of upholding the exemptions. In coming to this conclusion I consider that the public interest lies in a private space within which officials can provide free and frank advice and views to Ministers. Minister must have access to this full and candid advice in order to properly answer media requests/Parliamentary questions, provide sound information to Parliament (to which they are accountable) and robustly defend the Government’s policies and decisions. Disclosure of this type of information risks a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

There are two instances were some information was withheld under section 30(b) incorrectly and should have been released. This applies to the email exchanges of 19-20 February and 4 June. I have attached these emails at annexes C and D respectively. Some of the information in these emails was correctly withheld under sections 30(b) and 38(1)(b) and remains redacted.

 

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