- 28 Oct 2020
Date received: 5 Aug 2020
Date responded: 2 Sep 2020
- All communications (including emails, letters, text messages, hand written or typed notes) between the Scottish Government and the SQA on the subject of the moderation process for the 2020 awards and qualifications certification model. I would like this information from 01 July 2020 to 04 August 2020.
- All communications (including emails, letters, text messages, hand written or typed notes) between the Cabinet Secretary for Education & Skills, John Swinney MSP, and the SQA on the subject of the moderation process for the 2020 awards and qualifications certification model. I would like this information from 01 July 2020 to 04 August 2020.
I enclose a copy of the information you requested.
Some of the information you have requested is available from the Scottish Qualifications Authority (SQA) website (www.sqa.org.uk). Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.
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(c) (substantial prejudice to the effective conduct of public affairs) and section 38(1)(b) (personal information) of FOISA apply to that information.
An exemption under section 30(c) of FOISA applies to some of the information you have requested. In one case, disclosing this information would substantially prejudice our ability to conduct secure meetings by teleconference because we would not be able to reuse links, IDs and passcodes, or use similar ones, with confidence if that information were published. In the other, this exemption applies because revealing the source of the Scottish Government’s legal advice on data handling, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on qualifications policy. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.
This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of the 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. However, in the first case, this is outweighed by the public interest in maintaining secure lines of remote communication to ensure that the Scottish Government is able to conduct its business effectively. In the second, there is a greater public interest in enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter.
Releasing information about the source of legal advice would also be a breach of the longstanding Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.
An exemption under section 38(1)(b) of FOISA applies to some of the information you have 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.
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