Publication - FOI/EIR release

Communications concerning Coronavirus (Scotland) Bill and changes to Freedom of Information rules: FOI release

Published: 4 March 2021
Directorate: Constitution Directorate
Topic: Constitution and democracy, Coronavirus (COVID-19) in Scotland, Public sector
FOI reference: FOI/202000025358
Date received: 2 April 2020
Date responded: 2 March 2021

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

Information requested

All communication between ministers, officials and press officers regarding the proposed changes to Freedom of Information rules.

Response

I apologise for the length of time it has taken to respond to your request for information. The pressures of Covid work on staff resourcing in the Scottish Government have been intense and the FOI Unit, which handled your request, has not been insulated from that.

This case required an exceptionally large amount of work to identify and assess a voluminous amount of information at a time when the Scottish Government has had to redirect resources to Covid-related priorities. The Unit initially transferred a significant number of staff to other Covid work on a permanent, loan or shift basis as well as leading on the development and implementation of emergency Covid legislation concerning FOI.
Approximately half of the staff of the Unit was redeployed to Covid-critical roles, though the Unit is now close to its full complement again.

Regrettably, these resourcing pressures, plus the need to support the rest of the organisation to maintain FOI performance so far as possible, has led to a very significant delay in responding to your request. Again, I apologise unreservedly for that.
I enclose a copy of some of the information you requested.

Some of the information you have requested is available in the Parliament's Official Report for 1 April 2020 at columns 129 to 133 (http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12602&mode=pdf) because the speaking note for Stage 2 of the Bill's Parliamentary passage was delivered in the speech given by the Minister for Europe and International Development. 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 sections 29(1)(a) (formulation or development of government policy), 30(b)(i) and (ii) (free and frank provision of advice and exchange of views for the purpose of deliberation), 30(c) (substantial prejudice to effective conduct of public affairs), 36(1) (confidentiality of communications) and 38(1) (b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Section 29(1)(a) (formulation or development of government policy)
An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation of the Scottish Government’s policy on the FOI provisions in the Coronavirus (Scotland) Act 2020, and in particular to options for proposed Government amendments at Stage 2.

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. In fast-moving situations (such as preparing for the Parliamentary consideration of an emergency Bill, where all Stages are typically taken in a single day), it may well be necessary, as here, to develop a range of options at pace on a contingency basis.

If those contingent options required to be disclosed despite the contingencies against which they were prepared not coming to pass, we consider that this would significantly affect the extent to which work of this nature could be undertaken, meaning that the Scottish Ministers would be less well-prepared to respond to any eventualities in the course of Parliamentary proceedings.

Sections 30(b)(i) and (ii) (free and frank provision of advice; free and frank exchange of views)
Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank provision of advice; free and frank exchange of views) apply to some of the information requested, particularly views on initial policy proposals and briefing on potential questions that might be asked during Parliamentary debates.

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 responding to Parliamentary debates. Disclosing the content of free and frank advice and views will substantially inhibit the provision of such advice and views in the future, particularly because these discussions relate to the handling of sensitive issues.

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. It is clearly in the public interest that Ministers can properly participate in Parliamentary debates and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so.

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.

Section 30(c) (substantial prejudice to effective conduct of public affairs)
An exemption under section 30(c) of FOISA (substantial 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 the Coronavirus (Scotland) Bill, 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 preparing primary legislation. 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.

Section 36(1) (confidentiality of communications)
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.

Section 38(1)(b) (personal information)
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. the names and contact details of civil servants in grades below the Senior Civil Service, 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.

About FOI

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