- 16 Jan 2019
Date received: 30 November 2018
Date responded: 3 January 2019
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 an exemptions under the following sections of FOISA apply to that information
s.30(c) (substantial prejudice to the effective conduct of public affairs)
s.36(2) (actionable breach of confidence)
s.38(1)(b) (personal information)
The reasons why those exemptions apply are explained below.
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, ie the names and contact details of individual members of staff, 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 under section 36(2) of FOISA (actionable breach of confidence) applies to all the information requested because it was obtained from the Scottish Professional Football League (SPFL) and disclosure would constitute an actionable breach of confidence. This is because the information is confidential, was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality, and unauthorised disclosure would be to the detriment of the SPFL who provided the information. 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 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to all the information requested. It is essential for officials to be able to communicate, often in confidence, with external stakeholders on a range of issues, including unacceptable conduct. Disclosing the information about this issue, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. The SPFL would then be reluctant to provide future information on this issue if they believe that their views are likely to be made public, particularly while these discussions are still ongoing. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions on unacceptable conduct.
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 Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring the Government’s policy position on unacceptable conduct until the Government as a whole can adopt any future policy on this that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence, such as that provided by the SPFL. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest.
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
Central Enquiry Unit
Phone: 0300 244 4000
St Andrew's House