- 4 Jul 2019
Date received: 6 Jun 2019
Date responded: 3 Jul 2019
You asked for; all correspondence, information contained in discussions and all material supplied by Scottish Government to the Scottish Information Commissioner in relation to his relating to request “Independent Scrutiny of Inter Agency Decision Ref 092/2019.
I enclose a copy of some of the information you have requested. This is attached at Annex B to this letter.
Some of the information falling within the scope of your request is already available to you (either because we have previously sent you the information or because you previously provided the information) as follows:
- Your application to the Commissioner dated 06/03/2019
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however you no longer have a copy of this information, please contact me again and I will send you a further copy. 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 some of the information you have requested because exemptions under sections, 30(c) (prejudice to effective conduct of public affairs), 38(1)(a) and 38(1)(b) (personal information) of FOISA apply to that information. The reasons why those exemptions apply are explained in Annex A to this letter.
You may find it helpful to note that your information request was made while Decision 092/2019 is still in the appeal period (the appeal period expires on 18 July 2019). If you had made your information request after the appeal period had expired, it is possible that we might have reached a different decision with regard to the information withheld under section 30(c) of FOISA, as the circumstances would have changed. For future information requests, I would suggest that you wait until the appeal period has expired before making your information request, as it may increase your prospects of success.
Reasons for not providing information - Annex
An exemption applies
An exemption under section 38(1)(a) of FOISA (personal information) applies to a small amount of the information requested because it is personal information of which you are the data subject, i.e. your name and so it is subject to the General Data Protection Regulation and the Data Protection Act 2018.
An exemption under section 38(1)(b) of FOISA applies to some of the information requested because it is personal data of a third party, i.e. the 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.
These exemptions are 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.
An exemption applies, subject to the public interest test
An exemption under section s30(c) of FOISA applies to some of the information you have requested. This exemption applies because disclosure of that information would, or would be likely to prejudice substantially the effective conduct of public affairs.
The information you have requested comprises internal discussions regarding the formulation of the Ministers response to the Scottish Information Commissioner’s request for submissions and information under section 47(1) of FOISA. Staff provided their submissions and information in confidence and in the expectation that the information would not be released. Public authorities must be allowed to conduct their investigations having the confidence to provide submissions, in the knowledge that the information is confidential and that only where necessary will it be referred to in any Decision Notice issued by the Commissioner.
For the FOI appeal process to operate effectively, it is essential that any Scottish public authority is able to provide full and frank submissions to the Commissioner setting out the detailed reasoning behind the decision it made on an FOI request. If the details of our internal discussions about your previous FOI request were to be released before the appeal process has been completed, this would substantially compromise our ability to explain our position in submissions to the Commissioner in future appeals. Officials would be reluctant to contribute freely and frankly to such discussions if they thought that their contributions would be released into the public domain, particularly whilst the appeal period remains live.
In addition, we consider that disclosing correspondence with the Office of the Scottish Information Commissioner comprising of requests for submissions and information and the our response to those requests, in relation to an application to the Commissioner under section 47(1) of FOISA would also be likely to prejudice substantially the formal processes surrounding the consideration of applications under section 47(1) of FOISA, by disclosing detailed exchanges with the Commissioner in the course of these processes.
This in our view this constitutes substantial prejudice to the effective conduct of public affairs and in turn this would be likely to substantially prejudice the Commissioner's ability to investigate and make a fully informed decision on any future appeal. 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 because of the interest in open, transparent and accountable government, particularly in relation to helping the public better understand the reasoning behind decisions. However, there is a greater public interest in ensuring that the formal processes followed by the Scottish Government are unhindered. Also in ensuring that not only the investigation in question, but also future investigations, are not prejudiced. I consider that the disclosure of the information you have requested would, or would be likely to, result in such hindrance and prejudice, for the reasons stated above.
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