- 3 Dec 2018
Date received: 30 October 2018
Date responded: 19 November 2018
While our aim is to provide information whenever possible, we have redacted in this instance some of the information because an exemption under section 34(1)(a) and (b) - Investigations by Scottish public authorities and proceedings arising out of such investigations of FOISA applies to that information. The reasons why that exemption(s) applies are explained below.
Finally in response to your request about FoI/ 18/02514 for any correspondence on the use of exemptions; any correspondence on material to be redacted and any information on delays to the FOI response; I can confirm that there were no exemptions applied , no redactions and the issue of the response was not delayed ( due 10 October 2018 issued on the 3 October 2018).
An exemption under section 34(1)(a) and (b) of FOISA applies to some of the information you have requested. Section 34 of the Freedom of Information (Scotland) Act 2002 (FOISA) contains a wide range of exemptions, all relating to investigations carried out by Scottish public authorities.
In the email exchanges reference is made to a complaint that is currently the subject of an on-going investigation and athough no proceedings have been taken, the Scottish Government, has a duty to conduct an investigation to ascertain whether someone should be prosecuted for an offence.
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 because:
• it is in the general public interest that information is accessible i.e. whether disclosure would enhance scrutiny of decision-making processes and thereby improve accountability and participation;
• it would contribute to ensuring effective oversight of expenditure of public funds and that the public obtain value for money;
• disclosure would contribute to ensuring that any public authority with regulatory responsibilities is adequately discharging its functions;
• disclosure would ensure fairness in relation to applications or complaints, reveal malpractice or enable the correction of misleading claims;
However, this is outweighed by the public interest in the Scottish Government carrying out its duty as a Scottish public authority for the purposes of an investigation which the authority has a duty to conduct to ascertain whether a person should be prosecuted for an offence .
In coming to our decision to apply the exemption under section 34(1)(a) of FOISA we have satisfied ourselves that at this point in time the following tests are fulfilled:
• the information has been held by a Scottish public authority at any time;
• the information was held for the purposes of an investigation;
• the investigation was one which the authority had a duty to conduct; and
• the information was held for the purposes of ascertaining whether a person should be prosecuted for an offence.
In order for section 34(1)(b) of FOISA to apply we are satisfied that at this point in time the following tests have been fulfilled:
• the information been held by a Scottish public authority at any time;
• the information was held for the purposes of an investigation conducted by the authority (which is still ongoing);
• the investigation could lead (or could have led) to a decision by the authority to make a report to the procurator fiscal, to allow the procurator fiscal to decide whether or not to instigate criminal proceedings.
This is in line with the Scottish Information Commissioner Decision 003/2009.
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
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Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House