You asked for all internal and external correspondence (including but not exclusive to ministers, officials, special advisors) relating to the United Nations Committee on the Rights of the Child’s (CRC) revised draft General Comment regarding the minimum age of criminal responsibility, published in November 2018.
I enclose a copy of some of the information you requested at Annex B. However, some names and contact details have been redacted because an exemption under section 38(1)(b) (personal data) applies to that information. This exemption applies because the information is personal data of a third party and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.
While our aim is to provide information whenever possible, in this instance we are unable to provide all of the information you have requested because exemptions as the following sections of FOISA apply to that information: 29(1)(a) formulation or development of government policy; 30(b)(i) free and frank provision of advice; and 30(b)(ii) free and frank exchange of views for the purposes of deliberation. The reasons why these exemptions apply are explained in the Annex to this letter.
REASONS FOR NOT PROVIDING INFORMATION
Exemptions under sections 29(1)(a) – formulation or development of government policy, 30(b)(i) – free and frank provision of advice, and 30(b)(ii) – free and frank exchange of views for the purposes of deliberation Exemptions under sections 29(1)(a), 30(b)(i) and 30(b)(ii) of FOISA apply to some of the information requested.
These exemptions apply because: the information relates to the formulation or development of government policy; and 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 view.
Disclosing the content of all correspondence requested would be likely to substantially inhibit the free and frank provision of advice and exchange of views for the purposes of deliberation. The sensitivities of the correspondence are significant, due to the United Nations consultation currently being open, a Scottish Government response yet to be published, and the outcome of the consultation yet to be finalised. The disclosure of early deliberation on the development of policy, and formulation of advice to Ministers would be substantially inhibiting to the ongoing work in this area.
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 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 a private space within which officials can provide full and frank advice to Ministers as part of the Ministerial duties and responsibilities. This private space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which 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
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