Ministerial correspondence concerning the Early Learning and Childcare expansion delivery progress report: FOI review

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

Information requested

You asked for:

Any correspondence (emails, typed or handwritten notes, letters, phone calls, minutes of meetings, documents or otherwise) involving Scottish Government ministers and/or senior civil servants and/or special advisors regarding the following publication prior to its release date, including the original draft of the publication that was sent to ministers and/or senior civil servants and/or special advisors: ttp://



I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.

I can now provide our response to your original request; please see document attached.

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 30(b)(i), 30(b)(ii), and section 38(1)(b) apply. The reasons why those exemptions apply are explained in the Annex.

An exemption applies

Section 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 of the information requested because it is personal data of a third party, ie names and 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.

A further exemption applies under section 30(b)(i) and 30 (b)(ii) of FOISA (free and frank exchange of views) in relation to some of the information requested. 

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to share information and discuss any issues and options. 

Ensuring clarity in relation to the final publication is a key objective of the drafting process. On balance these earlier drafts were deemed to not be sufficiently clear or context could not be provided for certain parts. Therefore releasing these versions would not further public understanding of the expansion, and would instead potentially undermine public confidence in the reporting process.

This exemption is 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 Ministers and officials a private space within which to communicate, discuss and share information with the Improvement Service during drafting as part of the monitoring process in relation to the Early Learning and Childcare expansion.

In addition, this request relates also to correspondence surrounding the June report. Following on from the decision above that the release of the data is not in the public interest, there is also a strong argument that some of discussion surrounding the publication is also not in the public interest under section 30(b)(ii).

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at

FOI/19/02233 Information released


Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road

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