Social Security Delivery Board - Delivery Confidence Reports: FOI review

Information requested

Thank you for your request, dated 17 October 2019, for a review of the response FOI/19/02124 provided under the Freedom of Information (Scotland) Act 2002 (FOISA).

That request was for:

“Under FOISA, please provided the Delivery Confidence Reports provided/presented to the Social Security Delivery Board on 7 May 2019, 21 May 2019, and all other Delivery Confidence Reports provided/presented to meetings of the Delivery Board since 21 May 2019. [previously submitted as FOI/19/01791].

As discussed, I appreciate that the number of reports since May have increased since my request was initially submitted. If that too pushed it is over the limit, please let me know, or otherwise narrow the request by discounting the oldest report in sequence (i.e. 7 May 2019, then 21 May 2019)."

Response

I have now completed my review of our response to that request and I have concluded that a different decision should be substituted. I have provided some information not provided in the original response.

Some information previously withheld under Section 30(b)(ii) is now being released as 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 an exchange of views, disclosing information of this nature would not cause substantial inhibition on the free and frank provision of opinions or views in future.

However, I agree that the remaining content of the relevant documents should be withheld under the following exemptions:

• s29(1)(a) formulation or development of government policy
• 30(b)(i) free and frank provision of advice
• 30(c) prejudice to effective conduct of public affairs
• s33 commercial relations
• s38(1)(b) personal data

The attached documents show where redactions have been made and the exemption that has been applied to each particular piece of information.

Reasons for decisions

Exemptions under s.29(1)(a)
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 formulation and/or development of the Scottish Government’s policy for benefits being created for the Scottish social security system.

Public Interest Test
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 applying this 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, including their operational impact and how that affects overall Programme delivery. There are ongoing considerations about benefits in a continually changing context and those considerations should not be constrained by expectations being created in the public through publication of policy positions which are still under discussion and development.

Exemption under s.30(b) (i)
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) 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.

The Reports contain advice on the status of each business area, opinions on the issues facing them and assessments of possible remedial actions and their effects. It is my opinion that this constitutes the provision of free and frank advice and there is a significant probability that there would be substantial inhibition caused 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 assessments of progress, potential blockers, the appropriate timescales to be applied, the readiness of partners, the level of risk and/or proposals for future direction or actions.
The impact of the harm caused would be that subsequent Reports would not provide the Programme Director with the same level of candid, comprehensive views on key issues.

This information therefore constitutes free and frank provision of advice and releasing such advice about the Programme would, or would be likely to, cause substantial inhibition to free and frank provision of advice by suppressing the freedom with which opinions or options are expressed.

Public Interest Test
This exemption is subject to a Public Interest Test. We have, in all the circumstances of this case, considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We recognise that there is some public interest in release as part of open, transparent and accountable government, and to inform public debate, but this is outweighed by the vital public interest in ensuring that the Programme Director has the most comprehensive information and advice available to them to ensure high quality, fully considered decision making so as to ensure that public services are delivered as effectively as possible.

Exemption under s.30(c) regarding risks and issues
A further exemption under s.30(c) of FOISA also applies to this request for information. This applies where 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 to address risks and ‘blockers’.

Public Interest Test
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 delivery can be properly considered, so that good decisions can be taken.

Disclosure is likely to undermine the 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.

Exemption under s.30(c) of information relating to planned processes
Section 30(c) has also been applied to other information on different grounds. There is some financial information contained within the reports which is “management information”. The financial position of the Programme is reported annually in the Scottish Government consolidated accounts following careful examination and reconciliation. It would undermine established reporting processes and not be beneficial to the public to release piecemeal, partial and potentially incorrect information on Programme expenditure into the public domain.

There are also processes which are place for oversight and it would undermine those processes to disclose information about the engagement between other bodies and the Programme concerning planned activity and reporting.

Public Interest Test
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 applying this 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 ensuring that appropriate processes for scrutiny and publication of financial information prevent inaccurate or misleading information being placed into the public domain.

Disclosure of inaccurate or misleading information into the public domain would be likely to lead to public mistrust of officially published data. This would not be in the public interest. The planned process for oversight and reporting are an important part of holding the Scottish Government to account in its management of the Programme. Disclosing information partially and prematurely about the oversight activity before its scope and timetable could lead the public to having incorrect expectations. It is not in the public interest to have uncertainty about oversight of the Programme.

Exemptions under s.30(c) - working with departments under the UK government
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some the information requested. This exemption applies because disclosure would, or would be likely to, harm the working relationship between the Scottish Government and the UK Government departments.

The creation of the Scottish social security system requires the phased extrication of elements from the UK social security system. The UK government’s Department for Work and Pensions (DWP) and Her Majesty’s Revenue and Customs (HMRC) are therefore key delivery partners for the Social Security Programme. The release of Scottish Social Security Programme officials’ views on, for example, the operational capability and performance of DWP and HMRC could damage the working relationships between the Scottish and UK Governments and negatively impact on programme delivery.

Public Interest Test
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 maintaining good relations between the Scottish Government and the UK Government to ensure continued co-operative working until such time as the Scottish social security system is delivered and interacts correctly with the UK social security system. There is no public interest in disclosing information when that will damage relationships and disrupt co-operative working.

Exemptions under s.30(c) – securing value for public money
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the ability of Social Security Scotland to achieve value for money in contract negotiations. It would prejudice the negotiating position of Scottish Government to release information about the status and/or timings of those negotiations.

Public Interest Test
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 and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of the Scottish Government and its Executive Agencies, Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

Exemptions under s.38(1)(b)
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, i.e. the names of officials within the Programme, 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.

FoI/19/02124 Information released

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