Correspondence involving Joanna Cherry MP: FOI release

Information requested

Any mention of Joanna Cherry in communications sent Correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone calls, texts or instant messages, minutes of meetings, briefings or otherwise) by Scottish Government Ministers or Special Advisors to Scottish Government ministers covering the time period of 1st February 2020 until 1st August 2020.

Response

Please see the information you requested in annex A. 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 several exemptions under FOISA are applicable. Full details of these exemptions are listed below.

Section 38(1)(b)
An exemption under section 38(1)(b) of FOISA (third party personal data) applies to the information requested because it is third party personal information 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.

Section 30(b)(i) and Section 30(b)(ii)
An exemption under section 30(b)(i) and 30(b)(ii) of FOISA applies to the information you have requested. This applies where disclosure of the information would or would be likely to inhibit substantially the free and frank exchange of views and provision of advice. This exemption recognises the need for Ministers to have a private space within which to receive advice and have an exchange of views before the Scottish Government reaches a settled public view. Disclosing the content of advice provided or an exchange of views in developing a clear and defensible response will substantially inhibit the provision of such discussions 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 there is public interest in the correspondence sent by Scottish Minister or from Special Advisors to Scottish Government Ministers. However, there is a greater public interest in allowing a private space within which Ministers can have an exchange of views with officials or Special Advisers, as part of the process of exploring and refining the Government’s position, until the Government as a whole can adopt a position 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 decisions can be taken. 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 decision-making process, which would not be in the public interest.

Section 36 (1)
An exemption under section 36 (1) applies to some of the information you have requested. This section applies where the information requested is subject to Litigation Privilege, where communications or documents are pertinent to ongoing legal action.

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 there is public interest in the correspondence sent by Scottish Minister or from Special Advisors to Scottish Government Ministers. However, there is a greater public interest in maintaining the right of confidentiality of communications regarding legal action. Since providing this information could breach that confidentiality, it is not in the public interest to release this information.

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/202000087424 - Annex A

File type

12 page PDF

File size

799.8 kB