Transport Scotland: the process of planning and preparing for Brexit: FOI release

Section 28(1) – relations within the UK.

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested.  This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government. It would reveal candid discussions between the UK Government and Scottish Government  on the impact of EU Exit on Scottish Transport and discussions on influencing negotiating positions. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. Disclosure of this information will mean that the UK Government is likely to be more reluctant to communicate as frequently and openly with the Scottish Government in future.

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 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 maintaining close working relationships between the Scottish Government and the UK Government and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest such as the formulation and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum and their potential impact on Scottish Transport. There is no public interest in disclosing information when that will damage relationships and disrupt future communications as that may impact on the effectiveness of future policy development and implementation work.

Section 29(1)(a) – formulation or development of government policy.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum relating to Scottish Transport issues.

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 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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on  protecting Scotland’s interests in Europe following the EU Referendum will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Section 29(1)(b) – Ministerial communications 

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some the information requested because it relates to communications between Scottish Ministers.

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 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 Ministers a private space within which issues and policy positions can be explored and refined, until the Government as a whole can reach a decision or adopt a policy that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy or decision making process.

Sections 30(b)(i) and 30(b)(ii).

An exemption under section 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) ) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views and provision of advice. This exemption recognises the need for officials to have a private space within which to discuss options freely and provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice and free and frank exchange of views will substantially inhibit the provision of such advice and the candor of discussions in the future, particularly because these discussions are still ongoing and these discussions relate to the sensitive issue of relates to the formulation and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum and their potential impact on Scottish Transport.

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 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 full and frank advice and free and frank exchange of views to Ministers, as part of the process of exploring and refining the Government’s position and development of the Scottish Government’s policy proposals to protect Scotland’s interests in Europe following the EU Referendum  relating to Scottish Transport issues, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues and free and frank exchange of views between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.