Publication - FOI/EIR release

Scottish Information Commissioner decision 121/2019 and FoI/18/02260 correspondence: FOI release

Published: 20 September 2019
Directorate: Constitution Directorate
Part of: Public sector
FOI reference: FOI/201900003579
Date received: 22 August 2019
Date responded: 19 September 2019

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

Information requested

You asked for “Any correspondence (emails, typed or handwritten notes, letters, phone calls, minutes of meetings, documents or otherwise) since August 2018 on the topic of FoI/18/02260 and/or the Scottish Information Commissioner decision 121/2019 between any of the following people: Scottish Government Ministers, special advisers or senior civil servants.

Including, but not limited to, any correspondence (as defined above) on the additional information provided to the Information Commissioner for the first time in July 2019. That additional information is referenced in the decision number above, if you need further details”.

Response

I enclose a copy of some of the information you requested.

Some of the information that you have requested has already been disclosed to you under cover of my colleague [redacted] letter of 17 July 2019 in connection with FOI/18/02260, as well as under cover of my earlier letter of today, in connection with the Commissioner’s decision in that case.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information requested because exemptions under sections 30(b)(i) and (ii) (free and frank provision of advice and exchange of views for the purposes of deliberation), 30(c) (substantial prejudice to the effective conduct of public affairs), section 36(1) (legal professional privilege) and 38(1)(b) (personal information of third party) of FOISA apply to that information. The reasons why the exemptions apply are set out in the Annex to this letter.

Reasons for not providing information - Annex
An exemption applies

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, ie the names and contact details of civil servants, 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.

An exemption applies, 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 which will be given in whatever final press lines are used. Disclosing the content of free and frank briefing material on the development of press lines regarding FOI appeals will substantially inhibit such briefing in the future, particularly because these discussions relate to a sensitive or controversial issue such as internal FOI handling processes.

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 press lines. It is clearly in the public interest that Ministers can robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature 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. This exemption applies because revealing the source of the Scottish Government’s legal advice on referendum options, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on this topic. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This information comprises internal discussions regarding the formulation of the Ministers’ response to the Scottish Information Commissioner’s request for submissions in connection with an application for a decision 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. In order to ensure a comprehensive response to the Commissioner, Scottish public authorities must be able to investigate fully the handling of requests so that they can 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 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. In particular, officials would be reluctant to contribute freely and frankly to such discussions (especially in the form of detailed tactical advice on the presentation of the appeal) if they thought that their contributions would be released into the public domain, as this would substantially undermine the decision-making process.

This in our view would constitute 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 decision-making process adopted by the Scottish Government in relation to FOI requests and appeals. However, there is a greater public interest in ensuring that the Scottish Government is able to obtain candid advice about the best way to present any such appeal in order that it may engage as fully as possible with the Commissioner’s investigation. In the absence of such advice, submissions to the Commissioner would necessarily be more limited and we consider that this would in turn impact on the ability of the Commissioner effectively to discharge his statutory duties under FOISA.

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.

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