- 20 May 2020
Date received: 24 Feb 2020
Date responded: 19 May 2020
- All case handling files regarding FOI 201900009848 (both the initial response and the subsequent review)
- All communication, internal and external, regarding FOI 201900009848 (both the initial response and the subsequent review)
- Any other material related to FOI 201900009848 (such as, but not limited to, details of meetings discussion the case, personal notes etc)
Please find attached a response to your request.
Within the enclosures redactions have been made under Section 25(1), Section 38(1)(a), Section 38(1)(b) and Section 30(b)(ii).
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. As the information exempted under section 25(1) has already been provided to you in response to your original request, we believe this to be the case. If, however, you no longer have access to the information originally released to you, and you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.
An exemption under section 38(1)(a) of FOISA (personal information) applies to some the information requested because it is personal information of which you are the data subject, and so it is subject to the General Data Protection Regulation and 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 under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. the 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 under section section 30(b)(ii) of FOISA applies to some of the information you have requested. This has been applied to detailed and free and frank discussions, as part of the handling of FOI 201900009848 and its subsequent review, with regard to which exemptions may apply to the information requested.
In determining that this information is exempt, we have had regard to the need for officials to be able freely and frankly to consider the sensitivity of information at issue, to assess the applicability of freedom of information legislation to that information, and to consider the public interest in releasing the information or maintaining any applicable exemptions. The ability of officials to do this without inhibition is vital in order to arrive at an appropriate and lawful release of information. If officials expected that free and frank exchanges about the applicability of exemptions, of the kind included in this information, would be disclosed very shortly after an FOI response issued, there is a strong likelihood that such exchanges would be substantially inhibited in the future.
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 general public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. We have also considered the potential public interest in demonstrating that freedom of information requests are processed with appropriate adherence to the legislation, and that this was the case with regard to these specific requests.
However, we have judged that these considerations are outweighed by the public interest in allowing officials a private space within which to communicate as part of the process of exploring and refining a position on a response to a request or review under FOISA, until the Government as a whole can adopt a sound decision that results in an appropriate and lawful release of information. This includes offering and exchanging views while an understanding of the information requested (and its interaction with FOISA and the specific request at issue) is still being developed and therefore subject to a degree of uncertainty. Such free and frank exchanges are essential to enable all options and arguments (whether in favour of release or exemption) to be properly identified, considered and tested, so that decisions can be taken based on fully informed advice and evidence.
In coming to this conclusion, we have given weight to the fact that these discussions ultimately resulted in all the information requested being released with the exception of that withheld due to unqualified exemptions, specifically Section 25(1) where the information was already accessible and Section 38(1)(b), which related to personal data. We also note that if a requester were to believe their requests were, for whatever reason, not dealt with appropriately, there is a course of appeal to the Information Commissioner that allows for the handling of a request to be tested according to a process constituted for those exact purposes.
You may wish to note that some of the enclosures include versions of emails and information previously released to you, and with redactions applied. Where an enclosure contains a previously applied redaction we have so indicated ‘previous redactions applied’ in the list of enclosures.
In reading the enclosures relating to the review of FOI 201900009848, it may be helpful to note that some information relates to the timing of the response to your FOI review, as well as the timing of the publication of analysis of the 2019 exam diet, a substantial proportion of which was also contained in the response to the review.
This information demonstrates that an error was made by officials with regard to the statutory deadline for the response to the FOI. This error resulted in reduced timescales to clear a response to the review. It also required the publication of the analysis of the 2019 exam diet to be cleared as soon as possible the same day, in view of the fact that a commitment had been given to Parliament to publish that material and Ministers felt it would not have been appropriate to release it to a private individual alone without making it available to Parliament through general publication. The information released demonstrates that the FOI Review was submitted and cleared for response the same day, and that the analysis of the 2019 exam diet was approved at approximately 5.30 p.m and published shortly thereafter.
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