Publication - FOI/EIR release

Scottish Government correspondence concerning National 5 exams in 2021: FOI release

Published: 8 December 2020
Directorate: Learning Directorate
Part of: Education, Public sector
FOI reference: FOI/202000099398
Date received: 16 October 2020
Date responded: 26 November 2020

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

Information requested

Any internal Scottish Government communications (including letters, emails, typed or hand written notes, text messages or phone calls) regarding National 5 exams in 2021. I would like this information from 20 August 2020 to 08 October 2020.

Response

I enclose a copy 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 an exemption under section 29(1)(a) (policy formulation), 29(1)(b) (Ministerial communications), 36(1) (legal advice) or 38(1)(b) (personal information) of FOISA applies to that information.

An exemption under section 29(1)(a) of FOISA applies to some of the information you have requested. Section 29(1)(a) applies to information which is exempt as it relates to ongoing policy development.

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 of the need for open and transparent government. However, this is outweighed by the public interest in allowing a space for development of policy relating to the delivery of the 2021 SQA exam diet. While the information has contributed to the development of an overarching policy position, announced by the Deputy First Minister on 7 October 2020, it also relates to the ongoing development of how that policy will be brought into effect and therefore it is in the public interest for this to be withheld in order to allow space for that development.

An exemption under section 29(1)(b) of FOISA applies to some of the information you have requested. Section 29(1)(b) applies to information which is exempt as it is communication between Scottish Ministers.

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 of the need for open and transparent government. However, this is outweighed by the public interest in allowing Scottish 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 likely to be effective. This private thinking space also allows for all options to be properly considered, so that good 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 decision making process.

An exemption under section 36(1) of FOISA applies to some of the information you have requested. Section 36(1) applies to information which is exempt as it requests or provides legal advice.

We recognise that there is some public interest in because of the need for open and transparent government. However, this is outweighed by the public interest in maintaining the right to confidentiality of communications between the Scottish Government and its legal advisers.

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.

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