- 26 Oct 2018
Date received: 12 September 2018
Date responded: 11 October 2018
Some of the information you have requested is available from the Scottish Government’s website https://news.gov.scot/speeches-and-briefings/scotlands-education-reforms
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 sections s.29(1)(a) (policy formulation), s.30(b)(i) and (ii) (free and frank provision of advice and exchange of views), s.30(c) (prejudice to the effective conduct of public affairs), s.36(1) (confidentiality in legal proceedings) and s.38(1)(b) (personal information) of FOISA apply to that information. The reasons why that exemption(s) applies are explained below.
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.
Exemptions under sections s.29(1)(a) of FOISA apply to some of the information you have requested because it relates to the development of the Scottish Government’s policy on school empowerment.
Exemptions under sections s 30(b)(i) and (ii) (free and frank provision of advice and exchange of views), s.30(c) (prejudice to the effective conduct of public affairs) of FOISA apply to some of the information you have requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on school empowerment will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive issue.
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) also applies to some of the information requested. Disclosing this information would substantially prejudice our ability to conduct discussions with stakeholders on the development of their own polices before a settled position is reached by them because disclosure of such information would be likely to inhibit such exchanges until a point when agreement is significantly less likely to be achievable. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.
An exemption under sections s.36(1) (confidentiality in legal proceedings) applies to some of the information you have requested because it is legal advice and disclosure would breach legal professional privilege.
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 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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in allowing a private space within which officials can provide full and frank advice to Ministers and other officials, as part of the process of exploring and refining the Government's position on the further development of school empowerment. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, 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 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