- 11 Feb 2019
Date received: 21 Dec 2018
Date responded: 11 Feb 2019
You would like to request all ministerial briefings and FMQ briefings regarding the New School at Butterstone.
This should cover the period between September 1, 2018 and the date of receipt of this FOI request.
While our aim is to provide information whenever possible, in this instance we are unable to provide some the information you have requested because exemptions under sections, s.38(1)(b) (personal information), s.30(b)(i) (free and frank provision of advice), 30(c) (effective to the conduct of public affairs) and s.33(1)(b) (commercial interests) of FOISA apply to that information. The reasons why these exemptions apply are explained in the Annex to this letter.
I can also advise that Education Scotland does not hold any information in relation to the Registrar of Independent Schools. The office of the Registrar can be contacted at the following email address, email@example.com, to obtain any further information.
REASONS FOR NOT PROVIDING INFORMATION
Section 38(1)(b) – applicant has asked for personal data of a third party
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 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.
Section 30(b)(i) – free and frank provision of advice
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 potential next steps will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive issue.
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, we believe that the public interest does not outweigh the need for policy officials to be able to provide advice to Ministers, in order to formulate and develop policy in these particular circumstances.
Section 33(1)(b) – commercial interests
An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of company(ies) providing services to TNSB. Disclosing this information would be likely to significantly harm their commercial business”. Due to the sensitive nature of the services and advice being provided by the company(ies) to the school and could cause reputational damage.
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. In relation to the exemptions applied under section 33(1)(b) we believe that given that these matters are so recent they may be considered to be currently active, these matters are unlikely to have concluded completely at this time, and to publish information about prospective new arrangements via another company (particularly as the school referred to was a private company) may be detrimental to the interests of both of the organisation’s interests.
Section 30(c) – substantial prejudice to the effective conduct of public affairs
Exemption 30(C) The effective conduct of public affairs applies to some of the information related to sharing of information between ES and CI for the following reasons:
Disclosing correspondence between ES and CI or CI and ES in the context of inspection/review and other scrutiny and regulatory functions would prejudice both bodies abilities to perform their public duties and information sharing agreement in line with Section 6 page 7 for their Memorandum of Understanding. If such correspondence was released this could damage effective working relationships between the two scrutiny bodies and inhibit their ability to perform their functions.
This exception is subject to the public interest. On balance it better serves the public interest to withhold this information to preserve the necessary working arrangements in place between ES and CI. It is not necessarily about the sensitivity of this particular information but the impact of the release of it on the future working arrangements required in order to ensure the two bodies can share sensitive information in line with their different scrutiny and regulatory duties.
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 Andrews House