Publication - FOI/EIR release

Introductory briefings provided to Christina McKelvie on assuming new role: FOI review

Published: 5 Feb 2019

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

Published:
5 Feb 2019
Introductory briefings provided to Christina McKelvie on assuming new role: FOI review
FOI reference: FOI/18/03013 Review
Date received: 3 Dec 2018
Date responded: 3 Jan 2019
Information requested

 

Details, including any documents, of any introductory briefings provided to Christina McKelvie when she assumed her new role in the Scottish Government recently.

Response

 

Further to my email of 5 December, 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 Christina McKelvie when she assumed her new role in the Scottish Government recently.


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.


In accordance with section 21(4) of FOISA, I have also reached a decision on your request. I can now provide our response to your original request.
I enclose a copy of most of the information you requested. 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 29(1)(a) (policy formulation), 30(b)(i) (free and frank provision of advice), and 38(1)(b) (personal information) of FOISA apply to that information. The reasons why those exemptions apply are set out in Annex A to this letter.


Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. Some of the information you have requested is available online, and this is listed in Annex B to this letter.

 

ANNEX A
REASONS FOR NOT PROVIDING INFORMATION


An exemption applies.


Section 38(1)(b) – personal data of a third party.
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 (names of individuals below SCS level) and 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.


Exemptions apply, subject to the public interest test.
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 on equality, human rights and community cohesion.

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 in relation to some information. 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 equality, human rights and community cohesion 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 30(b)(i) – free and frank provision of advice
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies 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 equality, human rights and community cohesion will substantially inhibit the provision of such advice in the 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 allowing a private space within which officials can provide full and frank advice to Ministers as part of the process of exploring and refining the Government’s policy position on equality, human rights and community cohesion, 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 between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

 

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foi-18-03013 Annex B

1 page PDF
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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