Coronavirus legislation, rules and regulations and ongoing reviews: FOI release

Information requested

Coronavirus legislation and rationale for continuation of rules and regulations regarding lockdown must be reviewed every twenty one days by law.
Please provide me with following.

• Dates , times of each meeting to date since the start.
• Policy decisions, with rationale and minutes determining outcomes informing continuation, change or otherwise.
• Persons present, chairperson and cabinet members present.

Response

The formal decision to continue or change the requirements set out in the Health Protection Regulations is taken at Cabinet. There are also a wide range of meetings relating to the matters included in the review, across the Scottish Government.

Some of the information you have requested is enclosed in Annex A of this letter. While our aim is to provide information whenever possible, exemptions under Sections 29(1)(a) Formulation of Government Policy, 30(b)(i) Free and Frank Provision of Advice, 30(b)(ii) Free and Frank Provision of Views and 38(1)(b) (Personal Information) of FOISA applies to some of the information requested. 

The reasons why these exemptions apply are explained in Annex B of this letter.

Annex A
This is attached as a separate document.

Annex B
REASONS FOR NOT PROVIDING INFORMATION
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 the formulation of the Scottish Government’s policy on whether to continue or change the rules and regulations regarding lockdown, as set out in the Health Protection (Coronavirus) (Restrictions)(Scotland) Regulations and amending regulations.

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 need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications.

Section 30(b)(i) – free and frank provision of advice
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 to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on the Scottish Government’s deliberations on whether to continue or change the rules and regulations regarding lockdown will substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and decisions have not been taken, and these discussions relate to a sensitive or controversial issue.

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 a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s policy position on changing or continuing the “lockdown” restrictions, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy 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 policy making process, which would not be in the public interest.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation
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 Scottish Government’s deliberations on whether to continue or change the rules and regulations regarding lockdown will substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and decisions have not been taken, and these discussions relate to a sensitive or controversial issue.

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 whether to continue or change the rules and regulations regarding lockdown, until the Government as a whole can adopt a policy 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 policy 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 policy making process, which would not be in the public interest.

Section 38(1)(b) - personal information
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. names/contact details of individuals), and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.

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-202000043924 - Information released - Annex A

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