Publication - FOI/EIR release

Throughcare Service suspension: FOI release

Published: 19 Sep 2019

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

Published:
19 Sep 2019
Throughcare Service suspension: FOI release
FOI reference: FOI/201900002886
Date received: 26 Aug 2019
Date responded: 13 Sep 2019
Information requested

Please disclose all communications between the Cabinet Secretary for Justice, their civil servants and the Scottish Prison Service regarding the suspension of the Throughcare Service in Scottish Prisons. The period this should cover is 25/07/2018 until the present day (ie 26/07/2019).

Response

I enclose a copy of some of the information you requested.
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 s29(1)(a) (policy formulation), s29(1)
(b) Ministerial communications, s30(b)(i) (free and frank provision of advice), s30(b)(ii) (free and frank exchange of views), s33(1)(b) (commercial interests) and s38(1)(b) (personal data relating to third party) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

ANNEX A
Section.29(1)(a) Policy Formulation

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 development of the Scottish Government’s policy and response to the temporary suspension of SPS’ Throughcare Support Service and future approaches to throughcare support.
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 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 and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the temporary suspension of the Scottish Prison Service’s Throughcare Support Service and future approaches to throughcare support will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Section 29(1)(b) Ministerial communications
An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers 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 a private space within which future policy positions can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy.

Section 30(b)(i) Free and Frank provision of advice and Section 30(b)(ii) Free and frank exchange of views
Exemptions under section 30(b)(i) and section 30(b) (ii) of FOISA 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 the free and frank exchange of views for the purposes of deliberation. These exemptions recognise the need for officials to have a private space within which to discuss issues and options with external stakeholders and provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of discussions and the content of free and frank advice on the temporary suspension of the Throughcare Support Service and future approach to throughcare support will substantially inhibit such discussions and the provision of advice in the future, because stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly while these discussions are still ongoing.  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 Ministers and officials a private space within which to communicate with appropriate external stakeholders and within which full and frank advice can be provided as part of the process of exploring and refining the Government’s position on the temporary suspension of SPS’ Throughcare Support Service and future approaches to throughcare support until the Government as a whole can adopt an approach that is sound and likely to be effective.
This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials and stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest. There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual’s contribution was released against their wishes.

Section 33(1)(b) Commercial Interests
An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information
requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of third sector providers.  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 companies which tender for Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

Section 38(1)(b) Personal data relating to a third party
Information is also exempt if it relates to personal data or information which would make it possible to identify individuals.Disclosure of this information would be in contravention of data protection principles. Some of the documents have therefore been partially redacted to remove the names and contacts details of officials. 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.

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Contact

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Email: ceu@gov.scot
Phone: 0300 244 4000

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