Publication - FOI/EIR release

Communications regarding Supporting Transgender Young People: Guidance for Schools in Scotland: FOI release

Information request and response under the Freedom of Information (Scotland) Act 2002.

Published:
13 Feb 2019
Communications regarding Supporting Transgender Young People: Guidance for Schools in Scotland: FOI release
FOI reference: FOI/19/00152
Date received: 16 Jan 2019
Date responded: 12 Feb 2019
Information requested

 

You asked for us to provide any and all available internal and external communications, including emails, memos, meeting minutes etc, regarding the publication referenced below, Supporting Transgender Young People: Guidance for Schools in Scotland.

Response

 

I enclose a copy of some of the information you requested.

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 s.29(1)(a) (policy formulation), s.30(b)(ii) of FOISA (free and frank exchange of views), s.36(1) of FOISA (confidentiality in legal proceedings) and s.38(1)(b) (personal information) of FOISA applies to that information.

The reasons why that exemption(s) applies are explained in the Annex to this letter.


The Scottish Government funds LGBT Youth Scotland to address discrimination, engage with LGBTI young people and build the capacity of professional and public bodies. As part of their application submitted for the 2016/17 funding round, LGBT Youth Scotland set out the activity they intended to pursue, which included the production and roll out of LGBT Youth Scotland’s Guidance on ‘Supporting Transgender Young People in Schools’, developed in partnership with Scottish Trans Alliance.

A previous Freedom of Information response relating to this guidance can be found online at: https://www.gov.scot/publications/foi-18-03101/

Additionally, the 2017 minutes of the LGBTI Inclusive Education Working Group may also be of interest to you, and can be found online at: 

https://www.gov.scot/binaries/content/documents/govscot/publications/minutes/2018/10/lgbti-inclusive-education-minutes/documents/lgbti-inclusive-education-minutes-2017/lgbti-inclusive-education-minutes-2017/govscot%3Adocument

 

ANNEX
REASONS FOR NOT PROVIDING INFORMATION

 

An exemption applies

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some the information requested because it relates to the of the Scottish Government’s policy on LGBT inclusive education.

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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on LGBT inclusive education will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.


An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on LGBTI equality policy will substantially inhibit such discussions in the future, particularly because these discussions relate to sensitive issues such as bullying/harassment and/or supporting transgender young people in schools.

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 explore and refine the Government’s position on LGBTI equality policy until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.


An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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 as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.


An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount 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.

 

About FOI

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.

 

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG