Documents prepared for First Minister in relation to freedom of information legislation: FOI release

FOI reference: FOI/18/03406
Date received: 14 November 2018
Date responded: 13 December 2018

 

 

You asked for:

 

 

 

I enclose a copy of some of the information you requested (at Annex B of this letter and as 4 separate attachments).  

The information we hold is in respect of the first and third elements of your request – being a range of briefing prepared for Nicola Sturgeon since becoming First Minister. We do not hold any information in respect of the second part of your request – this is therefore a formal notice under section 17 of FOISA that we hold no correspondence sent by First Minister Nicola Sturgeon regarding freedom of information legislation.  

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  29(1)(a) (policy formulation), section 30(b)(i) (free and frank provision of advice) and section 38(1)(b) (personal information) of FOISA applies to that information.  The reasons why these exemptions apply are explained below.

 

 

Exemptions applied, subject to the public interest test.  
 
Exemptions under sections 29(1)(a) and 30(b)(i) of FOISA apply to some of the information you have requested.  
 
Section 29(1)(a) of FOISA (formulation or development of Scottish Government policy) applies to some of the information requested because it relates to the formulation of the Scottish Government’s policy on further extension of coverage of FOISA as well as the development of proposals to address the issues raised in the Scottish Information Commissioner’s Report into the Scottish Government’s Culture and Practice.  
 
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 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 also a public interest in the development of fully and properly considered policies and decisions.  
 
We consider that Ministers and officials need to be able to explore options and refine policy positions to fully understand their possible implications – and prior to formally setting out their proposals for public consultation.  We therefore consider that, in respect of the forumulation and development of the Scottish Government’s policy on extending coverage of FOISA, on balance, the public interest lies in favour of upholding the exemption in respect of a limited amount of the information in question. 
 
Similarly, in respect of addressing the recommendations contained in the Intervention Report, Ministers need to be able to fully consider the most appropriate way of revising their internal corporate policy to most effectively address the Commissioner’s concerns. Prematurely placing this information in the public domain is likely to restrict the ability of officials and Ministers to develop – and test – as broad a range of approaches as possible.
 
However, while we consider that section 29(1)(a) applies to some of the information in scope of the request, in assessing the balance of the public interest we consider this lies in release – other than for a limited amount of information. As noted above, there is a public interest in disclosing information as part of open, transparent and accountable government.

 

The focus of the policy in question here is how to address the concerns raised about the Scottish Government’s approach to FOI culture and practice – itself an issue of openness and transparency.  
 
We therefore consider that disclosure of this information, while of itself a matter of internal and ongoing policy discussion, assists in demonstrating the Scottish Government’s commitment to implementation of the Scottish Information Commissioner’s recommendations – and to improving FOI culture and practice.  
 
Section 30(b)(i) applies to some of the information requested because it relates to the free and frank provision of advice.
 
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 officials a private space in which to provide advice especially in circumstances where the policy position may require further exploration. Premature disclosure is likely to undermine the full and frank provision of advice to Ministers, in turn undermining full assessment of an issue of policy.
 
Exemption applied, not subject to the public interest test. 
 
An exemption under section 38(1)(b) of FOISA (personal information) also applies to a small amount of the information requested because it is third party personal data, ie names 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.