- 28 Sep 2018
Date received: 27 August 2018
Date responded: 26 September 2018
This request applies to the period since Graeme Logan left Education Scotland and took up his position with the Scottish Government.
I have attached PDF files with all available information to the email chain.
An exemption under section 25(1) of FOISA applies to some of the information requested – Information otherwise accessible. As this information is already in the public domain, we are not required to provide it.
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. 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.
These exemptions are also 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. 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.
An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of ACER UK.
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested as it is either 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. 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.
An exemption under section 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.
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
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House