- 19 Sep 2019
Date received: 12 Aug 2019
Date responded: 18 Sep 2019
You asked for information relating to the decision to produce updated guidance to support transgender pupils in schools including any evidence held that supports the claim that girls would be excluded by the existing LGBT Youth Scotland transgender guidance.
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 25(1) (information otherwise accessible), 30(b)(i) (free and frank provision of advice), 36(1) (confidentiality of communications – legal advice privilege) and 38(1)(b) (personal data relating to a third party) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex to this letter.
The decision to produce updated transgender guidance for schools was made by Ministers during a meeting on 7 March 2019. The basis of this decision was Ministers’ view that guidance that risked potentially excluding other girls from female-only spaces was not legal. This decision was announced to Parliament during the Cabinet Secretary for Social Security and Older People’s statement on 20 June 2019. As noted above, exemption 36(1) has been applied to legal advice relating to this decision.
The information that falls within the scope of your request has been enclosed separately.
Reasons for not providing information - Annex
25(1) (information otherwise accessible)
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 included within the information provided, then please contact me again and I will send you a paper copy.
30(b)(i) (free and frank provision of advice)
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the public criticisms of the transgender guidance produced by LGBT Youth Scotland will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to an analysis of the public criticisms of the guidance that attracted controversy at the time.
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 a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s policy position. 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, which in turn will undermine the quality of the policy making process, which would not be in the public interest.
36(1) (confidentiality of communications – legal advice privilege)
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.
38(1)(b) (personal data relating to a third party)
An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. 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.
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