Scottish Parliament election contingency plan: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002
Information requested
1. Any reports, documents or email correspondence from between 1 August and present day [13 October] between Scottish Government civil servants on the topic of the Scottish Parliament election in 2021 and contingency plans surrounding it.
2. During the same time period, any briefing reports, draft reports, emails, WhatsApp messages or other digital correspondence, meeting minutes involving the Deputy First Minister John Swinney and civil servants, on the topic of contingency planning for the Scottish Parliament election in 2021.
Response
Attached are two Annexes a copy of material that we consider releasable within the terms of your request.
Exempt material
While our aim is to provide information whenever possible, in this instance we are unable to provide most of the information you have requested because exemptions under sections 25 (information otherwise accessible), 27 (future publication), 29 (formulation of Scottish Administration policy etc), 30 (prejudice to effective conduct of public affairs), 36 (confidentiality), and 38 (personal information) of FOISA apply to that information.
Exemption under Section 25
The following otherwise accessible material that is already in the public domain is covered by your request as it is referenced within the communications you have requested. This includes:
A list of local government by-elections and guidance for the holding of elections in virus conditions published by the Electoral Management Board for Scotland:
https://www.emb.scot/elections/log-council-elections
Opinion Polling published by the Electoral Commission at:
https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/our-views-and-research/ourresearch/public-attitudes-towards-voting-scotland-context-covid-19
Electoral Commission - "Objectives for well-run elections in the current public context":
https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/elections-andreferendums/upcoming-elections/objectives-well-run-elections-current-public-health-context
Relevant news report at:
https://www.theguardian.com/world/2020/aug/12/new-zealand-delays-dissolving-parliament-amidmystery-coronavirus-outbreak
The answer to Patliamentary Question S5W-31681: Daniel Johnson, Edinburgh Southern, Scottish Labour, Date Lodged: 09/09.2020 on "what measures are being taken to safeguard the 2021 Scottish Parliament elections from external interference":
https://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-31681&ResultsPerPage=10
The draft Scottish Parliament (Elections etc.) (Miscellaneous Amendments) Order 2020 and its accompanying draft Policy Note (in particular Article 16(6) of the Order and paragraphs 41 and 42 of the draft Policy Note in relation to proxy voting, which can be accessed at:
https://www.legislation.gov.uk/sdsi/2020/9780111046906/contents
Exemption under Section 27
An exemption under section 27 of FOISA applies in relation to the draft legislation and accompanying documents that the Government is preparing in relation to the Scottish Parliament election as these materials are expected to be published
at https://www.parliament.scot/parliamentarybusiness/bills.aspx within 12 weeks.
Exemption under Section 29(1)(a)
An exemption under section 29(1)(a) of FOISA applies to most of the information you have requested. This is because contingency planning for the 2021 Scottish Parliament election is an area where Scottish Government policy is under active formulation and development. In particular, draft legislation is being prepared for introduction in Parliament. 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 and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the election will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.
Exemption under Section 29(1)(b)
An exemption under section 29(1)(b) of FOISA applies to some the information requested because it relates to communications between Scottish Ministers on the subject of the Scottish Parliament election. This exemption is also 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. Again, while we recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate on the election, there is a greater public interest in allowing Ministers a private space within which policy positions can be explored and refined, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space also allows for 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, which in turn will undermine the quality of the policy making process.
Exemption under Section 30(b)(i) and 30(b)(ii)
Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final material is published. Disclosing the content of free and frank briefing material on the election will substantially inhibit such briefing in the future, particularly because discussions on the issue are still ongoing and final decisions have not been taken.
These exemptions are 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 free and frank advice and views to Ministers in briefings. It is clearly in the public interest that Ministers can properly provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.
Exemption under Section 36(1)
An exemption under section 36(1) of FOISA applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege. This includes all internal exchanges in connection with the production of the Bill. 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.
Section 38(1)(b)
An exemption under section 38(1)(b) of FOISA applies to a small amount of some of the information requested because it is personal data of individuals included within the correspondence and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation. 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.
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
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