- 28 Jan 2019
Date received: 18 December 2018
Date responded: 25 January 2019
An exemption(s) under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested and released. It is essential for officials to be able to communicate, often in confidence, with external stakeholders on a range of issues, including instances where failings have been identified and lessons learned to inform improved future policy or guidance relating to industry standards. Disclosing the specific names of 3rd party individuals and individual private businesses, 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. These stakeholders will be reluctant to fully engage with Scottish Government and provide their views fully and frankly if they believe that their views are likely to be made public, particularly while this information relates to a sensitive issue such as the circumstances which led to the incorrect ashes being provided to families following a cremation. 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 policies as the development of statutory regulation of this sector continues.
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 and refining the Government’s policy position on matters which may inform and contribute to policy which addresses best practice, until the Government as a whole can adopt a policy 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 cremation authorities and funeral directors. 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.
An exemption applies, subject to the public interest test.
An exemption under section s.38(1)(b) (personal information) FOISA applies to some of the information requested and released. This has been applied in both attached reports made by the Inspector of Crematoria into their investigations at Dunfermline Crematorium in 2015, and Kirkcaldy Crematorium in 2018. Specifically this has been applied to withhold the identities of those families affected as a result of receiving incorrect ashes following a cremation. It has also been applied to those employees of Fife Council and funeral director businesses concerned.
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 this information is not related to an individual’s private life. However, this is outweighed by the public interest in upholding this exemption due to the potential impact on releasing such information affecting any future engagement with the Inspector or Scottish Government in other investigations. The knowledge that any and all interaction would be released publicly may prohibit the sharing of full and frank information, which contributes to ongoing development of policy to bring about statutory regulation of this sector.
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
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House