- 29 Oct 2018
Date received: 12 September 2018
Date responded: 11 October 2018
In relation to your request regarding emails that appear in John Swinney’s sent items folder sent emails folder in the last three months when the term “Education Bill” is searched. I have enclosed most of the information you have requested as a separate document to this letter.
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 38(1)(a), 38(1)(b), 30(b)(i) and 30(b)(ii) of FOISA apply to that information. The reasons why those exemptions apply are explained below.
Reasons for not providing information
Exemptions under section 38(1)(a) and 38(1)(b)
An exemption under section 38(1)(a) of FOISA (personal information) has been applied to your name and contact details because it is personal information of which you are the data subject, and so it is subject to the Data Protection Act 1998 (DPA). 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 38(1)(b)(personal information) applies to some of the information you have requested. This exemption applies because the information is personal data of a third party, names and contact details, 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 applies, subject to the public interest test
Sections 30(b)(i) and 30(b)(ii) – free and frank exchange of views for the purposes of deliberation
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 which will be given in whatever final press lines/lines to take are used. Disclosing the content of free and frank briefing material on education policy advice will substantially inhibit such briefing in the future, particularly because discussions on the issue are still ongoing and final decisions have not been taken.
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 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 in press lines/ lines to take. It is clearly in the public interest that Ministers can properly answer 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 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