Publication - FOI/EIR release

Appointment of the Chair of the State Hospital, correspondence: FOI release

Published: 9 Apr 2019
Directorate:
People Directorate
Part of:
Public sector

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

Published:
9 Apr 2019
Appointment of the Chair of the State Hospital, correspondence: FOI release
FOI reference: FOI/19/00649
Date received: 6 Mar 2019
Date responded: 4 Apr 2019
Information requested

You asked for the following information:

  • All correspondence, memos or notes including meetings and phone calls relating to the appointment of Kenny MacAskill as Chair of the State Hospital whether from by or to officials, special advisers and Ministers;
  • All notes or diary entries for meetings between officials, special advisers or Ministers relating to the above appointment;
  • All correspondence, memos of notes relating to a review of forensic mental health or the implications for the State Hospital.
Response
  1. I enclose a copy of some of the information you requested in relation to your request for correspondence, memos and note relating to the review of forensic mental health.
  2. 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 29(1)(a) formulation or development of government policy, 30(b)(i) free and frank provision of advice, 30(b)(ii) free and frank exchange of views for the purposes of deliberation, 36(1) legal advice, 38(1)(a) and 38(1)(b) personal data of a third party of FOISA apply to that information.  The reasons why these exemptions apply are explained in the Annex to this letter.
  3. In response to your questions regarding the appointment as Chair of the State Hospital, it has been passed to our Data Protection and Information Assets Team who will respond separately to this letter.

 

Reasons for not providing information - Annex
An exemption applies

An exemption under section 38(1)(a) and 38 (1)(b) of FOISA (personal information) applies to some the information you have requested because it is personal data of a third party (names and contact details of officials, potential review chairs and statistical information that would likely identify individual patients) 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.

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 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the ongoing development of the Scottish Government’s policy on the forensic mental health services review.

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 the forensic mental health services review 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 applies, subject to the public interest test
An exemption under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank provision of advice and free and frank exchange of views for the purposes of deliberation) 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 deliberate and provide free and frank advice to Ministers and other officials before the Scottish Government reaches a settled public view.  Disclosing the content of deliberations and free and frank advice on the forensic mental health services review will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken on all aspects of the review.

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 a private space within which officials can deliberate and provide full and frank advice to Ministers and other officials, as part of the process of exploring and refining the Government’s policy position on the forensic mental health services review, until the Government as a whole can adopt a policy that is sound and likely to be effective.  This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy 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 policy making process, which would not be in the public interest.

An exemption applies, subject to the public interest test
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.

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