Briefings to John Swinney or Nicola Sturgeon on Education Bill: FOI release

FOI reference: FOI/18/02588  
Date received: 20 September 2018
Date responded: 9 November 2018

 

 

Any briefings by civil servants provided to John Swinney or Nicola Sturgeon on the Education Bill from April to July 2018.

 

 

I enclose a copy of most of the information you requested. This includes briefing on the analysis of responses to the consultation on the provisions of the Education (Scotland) Bill, the final report of which is available here: https://www.gov.scot/Resource/0053/00534829.pdf

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. 

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 these exemptions apply are explained below. 

 

You may also wish to note that in some instances you have been provided with an extract of a document instead of the document in its entirety. These extracts are part of large routine briefings received by ministers for engagements, where the majority of the material has been outside the scope of your request. In these cases we have provided you with the relevant sections of the document.

 

 

An exemption under section s.38(1)(b) of FOISA (personal information) applies to the redacted information because it is the personal data of a third party, i.e. names/contact details of individuals, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998.

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.

An exemption under section s.29(1)(a) of FOISA (policy formulation) applies to some of the information you have requested because it relates to the development of the Scottish Government’s policy on school empowerment. 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, 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 record the development of policy on school empowerment. This 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 quality of the decision making process, which would not be in the public interest.

Exemptions under sections s.30(b)(i) and (ii) (free and frank provision of advice and exchange of views) 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. They recognise 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. These exemptions are subject to the ‘public interest test’. 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, 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. Premature disclosure of 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 s.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 policies before a settled position is reached by them.This exemption is also subject to the ‘public interest test’. Again, 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, 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 stakeholders’ positions on the development of school empowerment policy.

Premature 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 section 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.
This exemption is also subject to the ‘public interest test’. Again, 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 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