Correspondence with Scottish Prison Service (SPS) regarding death of remanded prisoner: FOI release

Information requested

You asked for a copy of all correspondence and notes from telephone or other conversations between the Cabinet Secretary for Justice and/or his officials and the Scottish Prison Service (SPS) and/or their representative/s, persons acting on behalf of the SPS regarding the case of Allan Marshall, who died on 28th March 2015 at Edinburgh Royal Infirmary. Restricting this information to those communications between 1st August 2019 and 31st August 2019 inclusive.

Response

I attach a copy of some of the information you requested. While our aim is to provide information wherever possible, in this instance we are unable to provide some of the information you have requested because exemptions under section 30(b)(i)(ii)(Free and frank provision of advice and exchange of views), section 29(1)(b) (Ministerial Communications), section 29 (1)(c) (advice by Law Officers), Section 27 (1)(a) (Information intended for future publication) and section 36(1) (Confidentiality of communications), of FOISA applies to that information. The reasons why that exemptions applies are explained bellow.

Reasons for not providing information - Annex

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 issues 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 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 decision making process.

Section 29(1)(c) – Law Officers’ advice
An exemption under section 29(1)(c) of FOISA (Law Officers’ advice) applies to some of the information requested because it relates to the provision of advice by the Law Officers.

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 maintaining the Law Officer Convention (reflected in the Scottish Ministerial Code), which requires that advice provided by the Law Officers should not be divulged except in exceptional circumstances and with the prior consent of the Law Officers. Parliament has also given particular statutory protection to the content of Law Officer advice or requests for their advice to ensure that the government is able to obtain frank and full legal advice in confidence from them (see for example the HM Treasury and the Information Commissioner case, 21 July 2009).

Section 36(1) – legal advice
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.

Sections 30(b)(i) and 30(b)(ii) – free and frank exchange of views for the purposes of deliberation
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 and lines to take are used. Disclosing the content of free and frank briefing material on the case of Allan Marshall will substantially inhibit such briefing in the future, particularly because discussions on the issue are still ongoing and final decisions have not been taken, and these discussions relate to a sensitive or controversial issue.

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/ lines to take. It is clearly in the
public interest that Ministers can properly provide sound information to Parliament (to which they are accountable), and 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.

Section 27(1) – information intended for future publication
An exemption under section 27(1) of FOISA applies to some of the information requested because we intend to publish that information, within 12 weeks of the date of your request.

We consider that it is reasonable to withhold the information until that date, rather than release some of this information before the planned publication date.
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 high profile case of Allan Marshall Fatal Accident Inquiry, and this will be met when the Scottish Prison Service respond to the Fatal Accident Inquiry recommendations. In the meantime, there is a greater public interest in taking the time necessary to ensure the information has
been properly collated and checked before it is published as planned. Also, we see no public interest in disrupting our programme of work to release the information ahead of the intended publication date.

About FOI
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.

FOI-201900003887 - Information Released

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