Further to my letter of 30 May 2019, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for information regarding the publication Supporting Transgender Young People: Guidance for Schools in Scotland.
I have concluded that the original decision should be confirmed, with modifications.
In your email dated 18 April 2019, you have stated that our response of the same date did not answer all of your questions, and on 30 April 2019 you further clarified which questions you did not consider had been answered.
I accept that our response to your original request could have been clearer in responding to each of your questions, and I apologise for this. You were originally directed to previous FOI responses FOI/18/03101 and FOI/19/00152, which provided the answers to most of your questions, and in doing so we should have advised you we were applying section 25(1) (Information otherwise accessible) of FOISA as we do not have to give you information which is already reasonably accessible to you. However, for ease of reference, I will now clarify below the answers to each of your questions.
1. Question – Was the Scottish Government ever asked to endorse this document.
1. Answer – Your first question was answered in the response to question 3 of FOI/18/03101. I have included the relevant paragraph below:
“3. The Scottish Government was neither asked about nor considered endorsement, and we did not consult with organisations in this regard”.
2. Question – Has anyone from the Scottish Government read the above document in an official capacity to determine whether it would be supported by the government or not? If yes, please provide details of this review, the scope, the findings, the basis for any decision, who this was communicated to and any other related information.
2. Answer – I can confirm that officials in the Scottish Government have read the document in an official capacity. The Scottish Government does not take any decision to formally endorse the guidance as we do not take a prescriptive approach to the curriculum in Scotland.
Additionally, when conducting my review I undertook further searches and identified additional information in relation to this part of your request. However, we are unable to provide you with this information as an exemption under section 36(1) (confidentiality in legal proceedings) of FOISA applies to. The reasons why the exemption applies is explained in the Annex to this letter.
3. Question – The Scottish Government have said publicly to STV that the guidance has the full support of Ministers. Please provide information as to how this support was determined.
3. Answer – As explained in the response to your original request while the Scottish Government is supportive of the guidance, it has not been used to inform LGBT inclusive education policy. We did not take any decision to formally endorse the guidance as we do not take a prescriptive approach to the curriculum in Scotland.
4. Question – If the answer to question 2 was no, please also provide information as to how all ministers can be fully supportive of guidance that has not been reviewed by anyone in an official capacity.
4. Answer – Not applicable as the answer to your second question was yes.
5. Question – Has the above document been used in the formation of policy on LGBT inclusive education? If so, please provide details of how and why this document has been used to inform policy.
5. Answer – This guidance has not informed LGBT inclusive education policy. The Scottish Government is supportive of the guidance produced by LGBT Youth Scotland, in conjunction with the Scottish Trans Alliance, on supporting young trans people. We did not take any decision to formally endorse the guidance as we do not take a prescriptive approach to the curriculum in Scotland. It is up to individual schools and local authorities how they deliver relevant and engaging learning, and who they work with to do so.
In your email dated 30 April 2019 you asked for clarification and stated:
“I am unclear about your response regarding the LGBTI inclusive working group. Are you saying that IP9 does not refer to the document “Supporting Transgender Young People: Guidance for Schools in Scotland”(STYP)? Or are you saying that it does, but it does not feed in to the LGBTI inclusive education policy?”
To clarify, IP9 was a proposal in the Strategic Work Plan designed to improve the educational experience of trans children and young people by ensuring teachers have relevant resources at their disposal. In their report to the Scottish Ministers, the LGBTI Inclusive Education Working Group recommended “…the Scottish Government will work with Education Scotland and partners to provide a suite of resources to inform staff and education authorities on best practice to support transgender young people.” (Recommendation 27a), which is being now taken forward by the LGBT Inclusive Education Implementation Group. Consideration of whether the STYP guidance would be included in this suite would be done as part of delivering this recommendation.
You have also asked for an explanation of the reason for exemption 29(1)(a) (formulation or development of government policy) applied in FOI/19/00152, which you were referred to in the original response to your FOI.
Our original response referred you to FOI/19/00152 as it contained the answers to some of the questions you have raised within this request. However, the information requested in FOI/19/00152 was on a much broader subject than your information request, and therefore much of the information held in relation to FOI/19/00152, including all of the information withheld under section 29(1)(a), does not fall within scope of this request. Consequently no information is being withheld under section 29(1)(a) of FOISA for this request (FOI/19/00998). If you have any queries regarding the way we have handled another information request, you should submit a separate, new request.
6. Question - If the answer to question 2 is no, and the answer to question 5 is yes, please provide details of how the above document can be used in the formulation of Scottish government policy, if no one from the Scottish government has read it to determine if it is something that should be supported, or indeed if it is compliant with domestic and international law.
6. Answer – Not applicable as the answers to question 2 was yes and question 5 was no.
Reasons for not providing information - Annex
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.
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
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