Communications in relation to the freedom of information request 18/02454: FOI release

You asked for:

Any correspondence (emails, letters, phone calls, handwritten notes or any other documents) between the lead official on FOI request FOI 18/02454 and/or Scottish Government ministers and/or the SG FOI Unit and/or special advisers regarding the response to that FOI request. Information should include: a detailed timeline (with dates) of when the lead official contacted ministers/special advisers (and vice versa); any notes or comments or suggestions offered by ministers or special advisers to the lead official; any input from the SG FOI Unit; any advice or comments from ministers/spads rejected by the lead official; any advice or comments from ministers/spads accepted by the lead official; any correspondence (as defined previously) on the use of exemptions; any correspondence (as defined previously) on material to be redacted; any information on delays to the FOI response; any information on who received the FOI to clear, when they responded and what they said; and any information on delays to the FOI response.

I enclose a copy of most of the information you requested as Annex II to this letter.

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 38(1)(a) and 38(1)(b) (personal information) and 30(c) (substantial prejudice to the effective conduct of public affairs) of FOISA apply to that information.

In addition, some of the correspondence you have requested is available https://www.gov.scot/publications/foi-18-02454-review/. 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 above website, then please contact me again and I will send you a paper copy.

As per your request, I also include a detailed timeline of when the lead official contacted ministers or SpAds and vice versa:

15 October                 The lead official sends the draft reply to SpAds for clearance.

16 October                 SpAds ask for clarification on the tabulation approach; the lead                                 official provides this and SpAds clear the draft response.

24 October                 The lead official sends the draft reply to the Minister for FE, HE,                               and Science for clearance.

25 October                 The Minister clears the draft reply.

26 October                 The lead official informs the Minister of a clerical error in the                                      response which has been rectified.

Reasons for  not providing information

Exemptions apply under sections 38(1)(a) and 38(1)(b).

An exemption under section 38(1)(a) of FOISA (personal information) has been applied to your own name and contact details because they are personal information of which you are the data subject, and so they are subject to the General Data Protection Regulation and the Data Protection Act 2018.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names and contact details, 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.

These exemptions are 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 exemptions.

An exemption applies under section 30(c), subject to the public interest test.

An exemption under section 30(c) of FOISA applies to some of the information you have requested.  Section 30(c) (substantial prejudice to the effective conduct of public affairs) applies to communications between Scottish Ministers and MSPs.

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 disclosing information as part of open, transparent and accountable government. However, this is outweighed by the public interest in maintaining the vital principle that communications between MSPs and Scottish Ministers are strictly confidential, especially when the MSP is writing on behalf of a constituent.