Publication - FOI/EIR release

Scottish Qualification Authority (SQA) revision of appeal process: FOI release

Published: 26 Mar 2021

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

Published:
26 Mar 2021
Scottish Qualification Authority (SQA) revision of appeal process: FOI release
FOI reference: FOI/202000108636
Date received: 3 Nov 2020
Date responded: 11 Jan 2021
Information requested

Ministerial direction SQA refer to and any information, paperwork, correspondence etc between SG and SQA and also more generally which explains the thinking behind the revision of the appeals process (please treat as an FOI). I am not sure whether you can also explain where responsibility lies for the design of the appeals process – SQA or SG.

This refers to the Ministerial direction issued to the Scottish Qualifications Authority on 11 August 2020 (Enclosure 06.1) and the appeals process implemented following that direction.

Response

You asked specifically for an explanation of where the responsibility lies for the design of that appeals process. Using the powers available in the Education (Scotland) Act 1996, the Deputy First Minister directed the SQA to re-issue awards based solely on teacher or lecturer judgement. The Direction did not stipulate how SQA should make their subsequent processes (including the appeals process) work. Paragraph 6 of the Direction makes clear that SQA was required to adapt its appeal processes in consequence of paragraphs 4 and 5. Enclosure 20.1 contains the subsequent information issued by SQA.

Some of the information you have requested is available from https://news.gov.scot/speeches-and-briefings/deputy-first-minister-sqa-2020-results. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

Attached is the rest of the information requested.

Please note, 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 sections 30(b)(ii) (free and frank exchange of views), 30(c) (effective conduct of public affairs), 36(1) (confidentiality), and 38(1)(b) (personal information) of FOISA applies to some of the information you have requested.

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 officials to have a private space within which to discuss issues and options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on the SQA appeals process will substantially inhibit such discussions in the future, particularly because these discussions relate to sensitive issues such as assessment of stakeholder views on the options.

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 the SQA appeals process, 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 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 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on National Qualifications policy 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 this 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 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 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 long-standing 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 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.

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. 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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Contact

Please quote the FOI reference
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Email: ceu@gov.scot
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