I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:
a) All information held - dating from 5/10/20 onwards inclusive - with regard to this study… https://www.medrxiv.org/content/10.1101/2020.09.17.20196436v3.full.pdf
…and any future iterations of it.
b) All correspondence with the authors of the study – and any future iterations of it - regarding its findings, dating from 5/10/20 onwards inclusive.
I have concluded that a different decision should be substituted.
Firstly, on part a) of your request, I have determined that some of the information should be released. This is attached at Annex B.
I have also considered the points made in your review request of 15 February. I consider that section 29(1)(a) should not have been applied in this case. However, I do consider that the exemptions under section 30(b)(i) (free and frank advice) and section 38(1)(b) of FOISA do still apply to some of the information you requested. Additionally, I consider that the exemption under section 30(b)(ii) (free and frank exchange of views) also applies to some of the information. However, I apologise that the original response to your request did not explain in detail why the quoted exemptions applied to this request and also did not apply the public interest test. I have therefore provided further details at Annex A and (in relation to the section 30(b) exemptions) carried out the public interest test.
In addition, I found that some of the information you have requested is available online (see article at https://www.pressreader.com/uk/scottish-daily-ail/20201214/281672552531601) or is copies of or information within emails sent to or from yourself (your email entitled ‘ICU’ to the Scottish Government’s Communications team of 11 December 2020 and their reply to you, also of 11 December 2020). Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.
Secondly, on part b) of your request, having reviewed this request I can confirm that the Scottish Government does not have any information within the scope of this part of your request. I apologise that this was not made clear in the response to your initial request. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.
REASONS FOR NOT PROVIDING INFORMATION
An exemption(s) under section section 38(1)(b) of FOISA applies to some of the information you have requested. This exemption applies because it is personal data of a third party, i.e. names and contact details of non-senior Scottish Government 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.
Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. 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 officials to have a private space within which to seek advice and views from others before reaching a settled public position. Disclosing the content of free and frank exchanges regarding draft lines in response to media queries will substantially inhibit such briefing in the future.
These exemptions are subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions. I have found that, on balance, the public interest lies in favour of upholding the exemptions. I 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 other officials in briefing. It is clearly in the public interest that the Scottish Government can properly respond to the media and the public on matters of such importance as the coronavirus and shielding policy. This needs full and candid advice from and discussion between officials to enable this. 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.
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.
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Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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