Correspondence regarding the response to FOI request 18/02676: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002.
Information requested
Any correspondence (emails, letters, phone calls, handwritten notes or any other documents) between the lead official on FOI request 18/02676 and/or Scottish Government ministers and/or the SG FOI Unit and/or special advisers regarding the response to that FOI request.
Information should include: a detailed timeline (with dates) of when the lead official contacted ministers/special advisers (and vice versa); any notes or comments or suggestions offered by ministers or special advisers to the lead official; any input from the SG FOI Unit; any advice or comments from ministers/spads rejected by the lead official; any advice or comments from ministers/spads accepted by the lead official; any correspondence (as defined previously) on the use of exemptions; any correspondence (as defined previously) on material to be redacted; any information on delays to the FOI response; any information on who received the FOI to clear, when they responded and what they said; and any information on delays to the FOI response.
Response
While our aim is to provide information wherever possible, under section 14(2) of FOISA a public authority is not required to comply with a request for information if it is identical or substantially similar to a request which it has already complied with, unless a reasonable amount of time has elapsed between the two requests.
Your request is identical to your previous request (FOI 18/03175) which was complied with on 27th November 2018. A request for an internal review of FOI 18/03175 was complied with on 31st December 2018. These responses are attached in Annex A
We recognise that on 17th January 2019 you received the response to the review of FOI 18/02676. This is the only information or circumstances that have changed since FOI 18/03175 was complied with so the FOI Review 18/02676 will be the focus of this response.
There was no correspondence with Ministers and/or Special Advisors during the review. This is a formal notice under section 17(1) of FOISA Scottish Government does not have the information you have requested. Correspondence between the lead official during FOI Review 18/02676 and the SG FOI Unit is provided in Annex B.
Nicola Richards, People Director, received the FOI Review to clear and information on when she responded and what she said is included in Annex C.
Information on the delay to the FOI Review 18/02676 response as provided on 21st December 2018 and a copy is included in Annex D
Exemptions under sections 30(b)(i), 30(b)(ii), 30(c) and 38(1)(b) applies to some of the information requested. Further details on the exemptions is provided in Annex E. Information considered to be outside the scope of your request has also been redacted.
Annex E
30(b)(i) and 30(b)(ii) free and frank provision of advice and free and frank exchange of views for the purposes of deliberation
Exemptions under section 30(b)(i) (free and frank provision of advice) and 30 (b)(ii) (free and frank exchange of views for the purposes of deliberation) of FOISA 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 or exchange of views for the purposes of deliberation.
This exemption recognises the need for officials to have a private space within which to provide free and frank advice to other officials or to discuss and explore options. Disclosing the content of free and frank advice or discussions will substantially inhibit the provision of such advice or discussions in the future
These exemptions are 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. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to other officials or to explore options.
30(c) – substantial prejudice to the effective conduct of public affairs
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.
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. However, there is a greater public interest in enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.
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 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
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