Introductory briefings to Humza Yousaf when he assumed new role: FOI release

FOI reference: FOI/18/03165  Review of Failure to Respond
Date received: 3 December 2018  
Date responded: 3 January 2019

 

 

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 Humza Yousaf when he assumed his new role in the Scottish Government recently.

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
 Justice Strategy: Vision and Priorities
https://www.gov.scot/publications/justice-scotland-vision-priorities/
 Justice in Scotland: Vision and Priorities delivery plan, 2017-2018 https://www.gov.scot/publications/justice-vision-priorities-delivery-plan-2017-18/

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. 

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 apply under
section(s):-
s29(1)(a) - Formulation or development of Scottish Government policy
s30(b)(i) – Free and Frank Provision of Advice
s30(c) – Otherwise prejudice effective conduct of public affairs
38(1)(b) – Personal information

 

The reasons why these exemptions apply are explained below.

 

 

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, i.e. names/contact details of individuals, 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.

An exemption applies, subject to the public interest test.

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/development of the Scottish Government’s Justice policy.

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 Justice policy matters 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.

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 these matters will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken.

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 justice matters, 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.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on fatal accident inquiries would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work in relation to fatal accident inquiries. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

 

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