Publication - FOI/EIR release

Introductory briefings provided to Shirley-Anne Somerville on assuming new role: FOI release

Published: 11 Feb 2019

Information request and response under the Freedom of Information (Scotland) Act 2002.

Published:
11 Feb 2019
Introductory briefings provided to Shirley-Anne Somerville on assuming new role: FOI release
FOI reference: FOI/18/03002
Date received: 3 Dec 2018
Date responded: 8 Feb 2019
Information requested

 

Details, including any documents, of any introductory briefings provided to Shirley-Anne Somerville when she assumed her new role in the Scottish Government recently as Cabinet Secretary for Social Security and Older People.

Response

 

Further to my letter of 05/12/2018, I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for details, including any documents, of any introductory briefings provided to Shirley-Anne Somerville when she assumed her new role in the Scottish Government recently as Cabinet Secretary for Social Security and Older People. 

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.

I apologise for the delay in responding to your request. As you will be aware, this is one of a series of requests that you made at the same time seeking details, including any documents, of any introductory briefings provided to eight different Ministers when they recently took up new Ministerial roles. You had previously submitted these requests as a single request (FOI/18/02458) and we refused it on the basis that the cost of locating, retrieving and providing the information requested would exceed the upper cost limit of £600 so we were not obliged to comply with it. Responding to these individual requests at the same time has similarly imposed a substantial burden on the Scottish Government, particularly the private offices of the Ministers in question and the central FOI Unit which provides advice and support to individual case handlers. In addition, we had to undertake detailed searches to ensure that all introductory briefing material was properly identified and considered for disclosure. This took longer than expected, but we accept it should not have delayed our response to you.

I can now provide our response to your original request.

Some of the information you have requested is available from the publication of a similar FOI requested in July 2018:

https://www.gov.scot/publications/foi-18-01867/

Some of the information you have requested is available from the following websites:

https://www2.gov.scot/Topics/Justice/law/17867/gender-recognition-review/review-of-gender-recognition-act-2004-list-of-orga

https://www2.gov.scot/Topics/Justice/law/17867/gender-recognition-review/gender-recognition-circular-1-2018

https://www.gov.scot/publications/review-gender-recognition-act-2004-analysis-responses-public-consultation-exercise-report/

 

Ms Somerville also received the same topical briefing note as Ms McKelvie, as you have already received that document in the response to ref: FoI/18/030103 it has not been included again here. 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 listed, then please contact me again and I will send you a paper copy.

 

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 28(1) of FOISA (relations within the UK), 29(1)(a) of FOISA (the formulation or development of government policy), 30(b)(i) (free and frankprovision of advice), 30(b)(ii) (free and frank exchange of views), and 38(1)(b) (personal information) apply to some of that information.  The reasons why those exemptions apply are explained in the Annex to this letter.

 

ANNEX

 REASONS FOR NOT PROVIDING INFORMATION

 

An exemption applies

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of  the information requested because it is personal data of a third party, ie names of individuals below Senior Civil Service (SCS) have been redacted as disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.  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

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 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.  The release of these communications about gender recognition will mean that the UK Government is likely to be more reluctant to share such information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations.

 

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 good relations 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 gender recognition. There is no public interest in disclosing information when that will damage relationships and disrupt future communications

 

An exemptions under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information you have requested because it relates to the formulation of the Scottish Government’s policy on gender recognition, equalities and social security.

 

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 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 gender recognition, equalities and social security 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.

 

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 the Scottish Government reaches a settled public view.  Disclosing the content of free and frank briefing material on gender recognition, equalities and social security.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, this is outweighed by the public interest allowing a private space within which officials can have free and frank discussions and provide full and frank advice to Ministers , until the Government as a whole can adopt policy and decisions that are 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 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.

 

About FOI

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Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG