Publication - FOI/EIR release

Junior Doctors' 48 hour Expert Working Group report: FOI review

Published: 15 Mar 2021

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

Published:
15 Mar 2021
Junior Doctors' 48 hour Expert Working Group report: FOI review
FOI reference: FOI/202100136631 Review of 202000101577
Date received: 12 Jan 2021
Date responded: 8 Feb 2021
Information requested

The information sought is the Report to the Cabinet Secretary for Health and Sport by the Junior Doctors' 48-hour Expert Working Group, chaired by Professor Philip Cachia at the request of the Cabinet Secretary, Ms Jeane Freeman. The Report is believed to have been submitted to the Cabinet Secretary on 3rd January 2020. The subject matter is the result of work undertaken by the Expert Working Group to develop "risk assessed options for implementing a 48-hour working week (without averaging) taking into consideration junior doctor wellbeing, the effects on education and training, continuity of safe and effective service provision and the impact on other staff." Please supply a copy of the Report in both paper and electronic formats.

Response

I have now completed my review of your request, and I have decided that the decision should be upheld, with modifications.

Having reviewed the withheld information in the report I have concluded that an exemption under section 29(1)(a) does not apply to all of the information previously redacted. As I have determined that some of this information can be disclosed I have provided an updated version of the report with my review decision letter. I am however satisfied that some of the information previously withheld under section 29(1)(a) remains exempt from disclosure.

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) was applied to some of the information requested because it related to the development of the Scottish Government’s policy for Junior Doctors. Having reviewed this information, I agree with the case handler that this exemption is applicable.

This exemption is subject to the ‘public interest test’. The case handler considered if, in the circumstances of this case, the public interest in disclosing the information outweighed the public interest in applying the exemption. The case handler found that the public interest lay in favour of  upholding the exemption. I have considered afresh where the public interest lies.

There is a clear public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, I do agree with the case handler that there is a greater public interest in high quality policy and decision-making. I also agree that Ministers and officials need to be able to consider all available options, and to debate those rigorously, to fully understand their possible implications. I therefore agree with the case handler that the public interest lies in favour of upholding the exemption.

I have also determined that some of the information previously withheld under section 29(1)(a) remains exempt from disclosure because an exemption under section 30(b)(i) (free and frank provision of advice) applies to that information.

Section 30(b)(i) (free and frank provision of advice)

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) apply to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This advice was provided by professionals acting
in their capacity as such and whilst they would be expected to provide some advice as part of their professional duties disclosing that advice can lead to officials concluding that other internal communications will probably have to be disclosed, thereby inhibiting the way in which advice is given in the future. This is sometimes known as “the chilling effect”. The exemption recognises the need for officials to have a private space within which to seek advice before making recommendations to 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 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 seek free and frank advice. It is clearly in the public interest that advice is sought during policy formulation. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice in the future, which would not be in the public interest.

Further information

In the updated version of the report, I have highlighted which exemptions have been applied to redacted information.

I refer to point one of your request for a review and can confirm that whilst the report was discussed with the BMA, it has not been shared with them.

I refer to points two and three of your request for a review and can advise that the BMA have not been consulted regarding release of the report. I can also confirm that the SG has considered the request in line with the provisions set out in FOISA and not consulted the BMA for views on disclosure in order to respond to the request/review.

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Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
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Edinburgh
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