Publication - FOI/EIR release

Correspondence between various education departments & agencies regarding fees: FOI appeal

Published: 25 March 2020
Part of: Education, Money and tax, Public sector
FOI reference: FOI/202000016099 Review
Date received: 14 February 2020
Date responded: 12 March 2020

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

Information requested

“Please provide digital copies of all emails, documents, memoranda, policy notices and legal advice in the possession of the Scottish Government which were received, written or sent during the period from 1 September 2011 to 1 April 2014, within, from or to, any of the following parts of the Scottish Government: SAAS, the Scottish Funding Council, the Cabinet Secretary for Education and Skills and his office, the Minister for Further Education, Higher Education and Science (and his office,) the Advanced Learning and Science Directorate, the Advocate General (and his department,) and the Scottish Government Newsroom, to also include any and all policy documents sent to the Scottish Universities by the Scottish Government, where any such documents include ALL of the following words or phrases (Singular or plural) "fees", "University", "Ireland", "Scotland", "Regulations", "Resident", "EU", "citizen.””.

Response

Further to my letter of 14 February 2020, I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for “Please provide digital copies of all emails, documents, memoranda, policy notices and legal advice in the possession of the Scottish Government which were received, written or sent during the period from 1 September 2011 to 1 April 2014, within, from or to, any of the following parts of the Scottish Government: SAAS, the Scottish Funding Council, the Cabinet Secretary for Education and Skills and his office, the Minister for Further Education, Higher Education and Science (and his office,) the Advanced Learning and Science Directorate, the Advocate General (and his department,) and the Scottish Government Newsroom, to also include any and all policy documents sent to the Scottish Universities by the Scottish Government, where any such documents include ALL of the following words or phrases (Singular or plural) "fees", "University", "Ireland", "Scotland", "Regulations", "Resident", "EU", "citizen.””.

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.
I apologise for providing this response late. This was due to issues in the information gathering stage of the request, followed by a miscommunication between Divisions which led to a delay in considering the material that fell within the scope of your request. The Scottish Government takes the handling of
Freedom of Information requests seriously and I apologise for failing to meet our responsibilities in this instance.
I can now provide our response to your original request.

I enclose a copy of some of the information you requested in the format you asked for.
Some of the information provided represents an extract from a general briefing document from 2014. While most of the information in the document is outwith the scope of your request, the extract includes information relating to tuition fees and universities, as specified in your request.
While our aim is to provide information whenever possible, in this instance exemptions under sections '29(1)(a) formulation and development of government policy', ‘30(b)(i) free and frank provision of advice’, '30(b)(ii) free and frank exchange of views for the purposes of deliberation in relation to official discussions and policy development', '36(1) legal advice', and '38(1)(b) personal data of a third party' of FOISA apply to some of the information you have requested. The reason why these exemptions apply is explained below.

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 names/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.

An exemption applies, subject to the public interest test
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 on the residency criteria applied to students and to the formulation and development of the Scottish Government's policy on updating its plan from 2014 for an independent Scotland.
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 residency criteria applied to students and discussions on the updates to its plan for an independent Scotland 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.

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 and Ministers to have a private space within which free and frank advice can be provided before the Scottish Government reaches a settled public view. Disclosing the content of free and frank provision of advice on the case for an independent Scotland will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive or controversial issue such as the potential second independence referendum.
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 officials and Ministers a private space within which to provide frank advice to properly inform the Government’s policy position on the potential independence referendum, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank provision of advice between officials and Ministers, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on the residency criteria applied to students will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive or controversial issue such as the residency criteria that will be applied to EU students after Brexit.
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 and officials a private space within which to explore and refine the Government’s policy position on the residency criteria applied to students, until the Government as a whole can adopt a decision that is sound and likely to be effective.
This private thinking space is essential to enable 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 and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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 lients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

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.