- 18 Oct 2019
Date received: 24 May 2019
Date responded: 1 Aug 2019
Thank you for your request, dated 24 May 2019, for a review of the response FOI/19/01125 provided under the Freedom of Information (Scotland) Act 2002 (FOISA). That request was for: “Under FOISA please provide the Programme Director Progress Report papers submitted to the Social Security Programme Board since November 2018”.
I have now completed my review of our response to that request and I have concluded that the original decision should be confirmed, with modifications. I have provided some information not provided in the original response. However, I agree that the remaining content of the relevant documents should be exempted.
I agree that the information withheld is exempt under both 30(b)(ii) and 30(c.) (prejudice to effective conduct of public affairs). I have set out the basis for my decision below.
There is also one redaction of an individual’s name under s38(1)(b). This is an absolute exemption and therefore a public interest test is not applicable
Reasons for decision
The Programme Director Progress Reports are intended to both inform and advise the Programme Director to enable her to make decisions on Programme management and, if necessary, take remedial actions. As a result, some of the information contained in the reports consists of factual statements of activity undertaken and tasks delivered, and, I have taken the view that, whilst this could be considered as a form of advice, disclosing information of this nature would not have a “chilling effect” on the provision of free and frank advice in future.
In contrast, the Reports also contain advice on how further phases of delivery might be undertaken. It is my opinion that this constitutes the initial part of an “exchange of views” and there is a significant probability that there would be a “chilling effect” if this type of information was disclosed. Officials would become reticent to include their comprehensive and candid views on the status of aspects of the Programme, including how well solutions had performed, the appropriate timescales to be applied, the readiness of partners, the level of risk and/or proposals for future direction or actions.
NB: I think it would also be arguable that this information could be characterised as the “provision of “advice”, rather than “exchange of views” in which case, section 30(b)(i) would become the relevant grounds for exemption. However, the same effects from disclosure as described in the above paragraph would ensue
The impact of the “chilling effect” would be that subsequent Reports would not provide the Programme Director with the same level of candid, comprehensive views on key issues.
A further exemption under s30(c) of FOISA also applies to this request for information, which flows from, but goes beyond, the impacts referred to under s30(b)(ii). The disclosure would, or would be likely to, cause substantial harm to the effective conduct of public affairs. The reduction in the quality of evidence and views made available to Programme Director to inform her decision-making would make it more difficult for her to make decisions on taking forward the Programme, including instigating remedial actions.
Public Interest Test
Both of the aforementioned exemptions are subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption.
I 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 officials a private space in which views can be exchanged freely and openly in order that options on Social Security policy and delivery can be properly considered, so that good decisions can be taken.
Disclosure is likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the decision-making process, the effectiveness of Programme management, and the delivery of robust benefit schemes. This would not be in the public interest
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