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Publication - FOI/EIR release

Coronavirus related questions: FOI Review

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

Published:
31 Aug 2020
Coronavirus related questions: FOI Review
FOI reference: FOI/202000060958
Date received: 13 Jul 2020
Date responded: 5 Aug 2020
Information requested
  • All information held relating to human rights reviews, considerations and scrutiny of Scottish Government imposed Coronavirus-related Acts, Regulations and Guidance (Part A)
  • information held relating to the imposition of a “broadly five mile” “rule” relating to distance travelled for exercise/recreation as part of phase one of lockdown easing – this should include scientific evidence demonstrating why five and not four, six, ten, etc. (Part B)
Response

I have now completed my review of our failure to respond to your request of 5 June 2020 under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

  • all information held relating to human rights reviews, considerations and scrutiny of Scottish Government imposed Coronavirus-related Acts, Regulations and Guidance (Part A)
  • information held relating to the imposition of a “broadly five mile” “rule” relating to distance travelled for exercise/recreation as part of phase one of lockdown easing – this should include scientific evidence demonstrating why five and not four, six, ten, etc. (Part B)

I apologise for the length of time it has taken to respond to your request for information. As noted in our letter to you dated 30 June 2020, the scope of your request necessitated a broad search for information from across the Scottish Government. Regrettably, this has led to delays in responding and I apologise for this. Further details of this search and results are set out below. 

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.

Part A

On Part A (requesting information relating to human rights reviews, considerations and scrutiny), whilst our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600. This part of the request covers a number of pieces of legislation and guidance documents, and therefore necessitated a broad search for information from across the Scottish Government. Searches by 30 teams and business areas identified over 10,000 documents as potentially falling within scope, and having carried out sampling we have identified that 18% of the sample fell outwith scope, meaning that approximately 8,000 documents are likely to be within scope. Further sampling identified that approximately half of the sample would require to be redacted, meaning that around 4,000 documents could be expected to undergo a physical redaction process. 
Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit. This upper cost limit is currently set at £600 by Regulations made under section 12. In this case it was estimated that, including the time already spent searching for the information, it would take around 850 hours giving a total cost of £12,750 to respond to Part A of the response, which exceeds the cost limit.

Advice and assistance: narrowing scope of request
You may wish to consider reducing the scope of Part A of your request, in order that the costs can be brought below £600. The three pieces of legislation covered by your request (the Coronavirus Act 2020, the Coronavirus (Scotland) Act 2020, and the Coronavirus (Scotland)(No 2) Act 2020), along with the associated secondary legislation made under these Acts and relevant guidance, cover topics spanning a very significant extent of the matters that the Scottish Government has responsibility for, and the responsibilities of a large number of teams and staff. Each of the topics in the Acts and the regulations and associated guidance is required to be assessed and reviewed in relation to its effect on Human Rights throughout the legislative process and as part of implementation. It may therefore be helpful if you are able to be more specific regarding: the particular area(s) or provisions of interest within the legislation covered by your request, the type of document(s), the author or recipient of the document(s), or communications to/from or between specific individuals or Government departments. 

You may also find it helpful to look at the Scottish Information Commissioner's 'Tips for requesting information under FOI and the EIRs' on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.
In considering how the scope of the request could be narrowed, you may wish to be aware that a significant amount of information in scope of the original request is related to the preparation or operation of the legislation covered by the request, and contains legal advice. Our initial assessment was that much of this information was likely to be exempt information in terms of section 36(1) of  FOISA (confidentiality in legal proceedings) because disclosure would breach legal professional privilege. While we cannot prejudge the application of exemptions to any future requests, if the request were to be narrowed but still focus on preparation or operation of the legislation, then we think it it is likely this exemption might apply to much of the information in scope. You may therefore wish to consider this if you are considering making a further request.

Advice and assistance: information already publicly available
Some information on consideration and analysis of human rights implications and impacts of the UK and Scottish Coronavirus Acts is already publicly available. This includes within the policy memorandums for the Coronavirus (Scotland) and Coronavirus (Scotland) (No. 2) Acts, which are accessible via the following links:
https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/coronavirus-scotlandbill/introduced/policy-memorandum-coronavirus-scotland-bill.pdf
https://beta.parliament.scot/-/media/files/legislation/bills/current-bills/coronavirus-scotland-no2-bill/introduced/policy-memorandum-coronavirus-scotland-no2-bill.pdf

In addition, the Scottish Police Authority’s website includes information on the establishment by Police Scotland and the Scottish Police Authority of an Independent Advisory Group - of which the Scottish Human Rights Commission (SHRC) is a member - to review Police Scotland's use of new temporary police powers, and a copy of the SHRC Human Rights Guide to examining new police powers in response to Covid 19:
http://www.spa.police.uk/news/615837/
http://www.spa.police.uk/assets/617667/humanrightsguide

You may also be interested in the Inquiry into the Impact of the Covid 19 pandemic on Equalities and Human Rights which is being undertaken by the Scottish Parliament’s Equalities and Human Rights Committee, and on which more information is available via the following link:
https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/114975.aspx
The Scottish Government’s Minister for Older People and Equalities, Ms McKelvie, gave evidence to the Committee on 25 June, and a copy of the transcript for that session is also available on the Committee’s webpages: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12721

Part B
Your request asked for information held relating to the imposition of a “broadly five mile” “rule” relating to distance travelled for exercise/recreation as part of phase one of lockdown easing – this should include scientific evidence demonstrating why five and not four, six, ten, etc. 

I enclose a copy of some of the information you 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 exemptions under section 30(b)(ii) – (free and frank exchange of views for the purposes of deliberation), section 36(1) (legal professional privilege) and section 38(1)(b) (personal information) of FOISA applies to this information. The reasons why these exemptions apply are explained in the Annex to this letter.

REASONS FOR NOT PROVIDING INFORMATION

An exemption applies
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 and contact details of staff in grades below the Senior Civil Service, 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 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 operational implications of potential changes to Covid 19 regulations will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive or controversial issue such as enforcement of any changes.

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 enforcement of changes to Covid 19 regulations, 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.

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.

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.

Contact

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

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG