Penrose Inquiry correspondence with Head of Health Protection in 2015: FOI release

Information requested

You asked for ‘all e-mails sent or received by the then Head of Health Protection in the Public Health Division at Population Health Improvement Directorate Scottish Government - which concern the Penrose Inquiry, during the period 1st March 2015 - 31st March 2015. This includes any attachments to such emails.’

Response

I enclose a copy of some of the information you requested at Annex B.

In addition, some of the information you have requested is available from the following sources:

Parts of two emails within the scope of this request have already been provided to you in response to a previous FOI request. See the documents provided on 14 May 2019 in response to 
FOI/19/00901.

Letter from the CMO of 27 March 2015 - https://www.sehd.scot.nhs.uk/cmo/CMO(2015)04.pdf

The response to Parliamentary Question S4W-23405 is available online at https://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S4W-23405&ResultsPerPage=10

A copy of the former Cabinet Secretary for Health and Sport’s statement on the Penrose Inquiry on 26 March 2015 is available at http://www.parliament.scot/parliamentarybusiness/report.aspx?r=9877

A copy of the First Minister’s answer to S4F-02695 on 26 March 2015 is at http://www.parliament.scot/parliamentarybusiness/report.aspx?r=9877&i=90467

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the websites listed or do not still have a copy of the response to the previous FOI specified above, then please contact me again and I will send you paper copies.
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) and (ii) (free and frank advice and exchanges of views), 30(c) (prejudice the effective conduct of public affairs), 36(1) (legal advice) and 38(1)(b) (personal information) of FOISA applies to that information. The reasons why those exemptions apply are explained in Annex A to this letter.

Annex A - Reasons for not providing information
An exemption applies

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, i.e. names and contact details of non-senior staff or external stakeholders, 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.

Exemptions apply, subject to the public interest test

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position. Disclosing the content of free and frank briefing material on the Penrose Inquiry will substantially inhibit such briefing in the future, particularly because this relates to matters which remain subject to discussion today as part of the UK Infected Blood Inquiry.

These exemptions are 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 provide free and frank advice and views to Ministers in briefing. It is clearly in the public interest that Ministers can properly respond to the Scottish Parliament and stakeholders on matters of such importance as the findings of the Penrose Inquiry. They need full and candid advice from officials to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers and officials to be able to communicate, often in confidence, with external stakeholders on a range of issues, including those linked to the Penrose Inquiry. Disclosing the content of these communications, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to provide their views fully and frankly if they believe that their views are likely to be made public, particularly where these discussions relate to a sensitive issue, such as infected blood. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions.

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 Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on issues relating to infected blood. This private space is essential so that decisions can be taken based on fully informed advice and evidence. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Finally, 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.

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FOI/19/02466 - Annex B

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42 page PDF

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