Publication - FOI/EIR release

Internal communications relating to care homes: FOI release

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

Published:
21 Apr 2021
Internal communications relating to care homes: FOI release
FOI reference: FOI/202100148211
Date received: 29 Jan 2021
Date responded: 12 Mar 2021
Information requested

Any and all internal correspondence including emails, instant messaging, texts, emails relating to FOI Request: 202000092009.

Response

Attached in Annex B is some of the information requested. 

We are providing copies of documents and emails that are in scope of your request. Certain redactions are made because an exemption under Sections 30(b)(ii) (Free and frank exchange of views for the purposes of deliberation), 30(c) (Prejudice to effective conduct of public affairs) and 38(1)(b) (Personal information), of FOISA applies to the information. The reasons why that exemption applies are explained in the Annex A.

Annex A
REASONS FOR NOT PROVIDING INFORMATION

An exemption applies

An exemption under sections 30(b)(ii) (Free and frank exchange of views for the purposes of deiliberation) of FOISA applies to some of the information you have requested. This has been applied to detailed and free and frank discussions, as part of the handling of 202000092009 with regard to which exemptions may apply to the information requested.

In determining that this information is exempt, we have had regard to the need for officials to be able freely and frankly to consider the sensitivity of information at issue, to assess the applicability of freedom of information legislation to that information, and to consider the public interest in releasing the information or maintaining any applicable exemptions. The ability of officials to do this without inhibition is vital in order to arrive at an appropriate and lawful release of information. If officials expected that free and frank exchanges about the applicability of exemptions, of the kind included in this information, would be disclosed, there is a strong likelihood that such exchanges would be substantially inhibited in the future.

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 general public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.

However, we have judged that these considerations are outweighed by the public interest in allowing officials a private space within which to communicate as part of the process of exploring and refining a position on a response to a request under FOISA, until the Scottish Government can adopt a sound decision that results in an appropriate and lawful release of information. This includes offering and exchanging views while an understanding of the information requested is still being developed and therefore subject to a degree of uncertainty. Such free and frank exchanges are essential to enable all options and arguments (whether in favour of release or exemption) to be properly identified, considered and tested, so that decisions can be taken based on fully informed advice and evidence.

An exemption under section section 30(c) (Substantial prejudice to effective conduct of public affairs) of FOISA applies to the draft versions of our response to request 202000092009. We consider disclosure of this information would be likely to prejudice the effective conduct of public affairs because these are incomplete drafts and do not constitute the final version of a response, that would otherwise be based on all of the information available at that time to enable officials to properly respond.

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 general public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, we have judged that these considerations are outweighed by the public interest in allowing officials a private space to explore and refining a position on a response to a request under FOISA, until the Scottish Government can adopt a sound decision that results in an appropriate and lawful release of information.

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. the names and contact details of staff, 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
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.

FOI202100148211 - Annex B

19 page PDF
502.0 kB

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