- 31 Oct 2018
Date received: 1 October 2018
Date responded: 29 October 2018
- copies of drafts of the Scottish National Standardised Assessments User Review; and
- copies of any communication from Ministers, Spads or Learning Directorate staff discussing the document.
I have now completed my review and I have concluded that the original decision should be confirmed, with modifications. I will address each point in turn.
Some of the information within the scope of your request was withheld under section 25(1) on the basis that you could reasonably obtain it without asking for it under FOISA. In considering the handling of your request, I have concluded that it was not made clear to you what information was being withheld on this basis. I can confirm that the information withheld under section 25(1) comprised: comments received in response to an EIS survey, the SNSA User Review itself, the Scottish Government’s news release ‘Improving Standardised Assessments’ published on 28 August and an open letter of 28 August from the Deputy First Minister to parents of primary 1 children.
Section 15 of FOISA requires us to provide reasonable advice and assistance and, in relation to section 25, where information is already publicly available, we should provide adequate signposting. With regard to the comments on the EIS survey you were provided with the following link to the information (published following a separate request for information under FOISA): https://beta.gov.scot/publications/foi-18-01829. While this link directs you to the Scottish Government website, you could have been provided greater assistance in accessing the other information on our site. I am, therefore, providing the following link to the news release which includes within it links to the User Review and the open letter:
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.
Section 27(1) – Information held with a view to publication.
In the original handling of your request, section 27 (1) was used to withhold draft versions of the User Review Report, the Scottish Government’s news release ‘Improving Standardised Assessments’ and the open letter of 28 August from the Deputy First Minister to parents of primary 1 children. Having reviewed this I have concluded that this exemption was not correctly applied. However, exemptions under sections 30(b)(i) and 30(b)(ii) – the free and frank provision of advice and exchange of views – do apply to this information. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views. They recognise the need for Ministers and officials to have a private space within which to provide free and frank advice and to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of these draft documents and the free and frank advice and discussion on them will substantially inhibit the provision of such advice and such discussions in the future.
These exemptions are 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 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.
The original response to your request also withheld, under section 27 (1), a letter issued to local authority Directors of Education on 28 August. I have concluded that this exemption was incorrectly applied here too and that information in that letter should have been provided to you. Some of the content of the letter was outwith the scope of your request and I have, therefore, attached a copy of the letter to Directors of Education, with out-of-scope information redacted, at Annex A.
Section 30(b)(i) – Free and frank provision of advice 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. In most instances where this exemption has been applied, I have judged it to have been appropriate. However, there are some instances where the information should have been withheld under section 30(b)(ii) as disclosure of information would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation.
As mentioned earlier, these exemptions are also subject to the ‘public interest test’ and, again 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 for the same reasons stated previously.
There are a small number of instances where an exemption was applied under 30(b) that I have judged to be incorrect and I have provided an updated version of relevant document at Annex B. The additional information being release is highlighted in this document.
Section 38(1)(b) – Personal information.
You requested that all information withheld from you on the basis that it is personal data of a third party be reviewed. I have done so and am satisfied that, where exemptions under section 38(1)(b) have been applied, they have been done so appropriately with one exception. In the email sent on 18 June 2018 at 17:00 (provided to you as part of email chain 13) there is reference to the 19 June meeting of the Scottish Education Council. Within that email the venue of the meeting has been redacted incorrectly under section 38(1)(b). I can confirm that the meeting was at Forthview Primary School and the redaction in that email of the words ‘Forthview Primary’ should not have been made.
Overall, as detailed above, some of the original handling of your request was not done properly and I wish to take the opportunity to apologise to you for that.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses athttp://www.gov.scot/foi-responses
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House