Publication - FOI/EIR release

“Extended Presumption Against Short Sentences – Monitoring Information July 2019 – December 2019” statistical publication: FOI release

Published: 25 Mar 2020

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

Published:
25 Mar 2020
“Extended Presumption Against Short Sentences – Monitoring Information July 2019 – December 2019” statistical publication: FOI release
FOI reference: FOI/202000017806
Date received: 25 Feb 2020
Date responded: 23 Mar 2020
Information requested
  • Any correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone calls, texts or instant messages, minutes of meetings, briefings or otherwise) between Peter Malek, Justice Analytical Services and (i) Scottish Government ministers, (ii) special advisers, (iii) officials, (iv) press officers or (v) other civil servants, on the subject of the publication “Extended Presumption Against Short Sentences – Monitoring Information July 2019 – December 2019” OR the Scottish Government press release/media plan for those statistics.
  • Any correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone calls, texts or instant messages, minutes of meetings, briefings or otherwise) between the Office of the Chief Statistician in Scotland and (i) Scottish Government ministers, (ii) special advisers, (iii) officials, (iv) press officers or (v) other civil servants, on the subject of the publication “Extended Presumption Against Short Sentences – Monitoring Information July 2019 – December 2019” OR the Scottish Government press release/media plan for those statistics.
  • Any correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone calls, texts or instant messages, minutes of meetings, briefings or otherwise) between any of (i) Scottish Government ministers, (ii) special advisers, (iii) officials, (iv) press officers or (v) other civil servants, on the subject of the Scottish Government press release/media plan for the publication “Extended Presumption Against Short Sentences – Monitoring Information July 2019 – December 2019”.
Response

I enclose a copy of most of the information you have 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 of exemptions under section 30(b)(i) and 30(b)(ii) of FOISA - where disclosure would be prejudice to effective conduct of public affairs, and 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. Furthermore Section 38(1)(b) of FOISA has been applied to the personal information of certain individuals. These exemptions, and the reasons for their application, are explained in full in the annex to this letter.

ANNEX
REASONS FOR NOT PROVIDING INFORMATION

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 – 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.

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. Disclosing the content of free and frank briefing material on the publication of these statistics will substantially inhibit such briefing in the future, particularly because these discussions relate to the sensitive issue of the topic.

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 relation to the announcement of statistics and other information. It is clearly in the public interest that Ministers can properly interpret and respond to queries about these statistics and how this evidence informs 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.

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Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
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