Publication - FOI/EIR release

Discussions held relating to OCED report: FOI release

Published: 2 Jun 2021

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

Published:
2 Jun 2021
Discussions held relating to OCED report: FOI release
FOI reference: FOI/202100170093
Date received: 4 Mar 2021
Date responded: 17 May 2021
Information requested

1. Please provide details of all the discussions between Scottish Ministers and the OECD on the subject of the publication prior to the forthcoming Scottish election of an interim report, a full report or any other equivalent document since the relevant vote at Parliament on 17 February 2021 (including copies of all correspondence, documents, reports, minutes, letters and emails).

2. Further to question 1, please provide a copy of all the internal Scottish Government discussions (including with Scottish Government agencies such as Education Scotland and SQA) on this same topic (including internal correspondence, documents, reports, minutes, letters, briefings, emails).

Response

1. There have been no discussions between any Scottish Ministers and the OECD.

2. 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 section 30(b) (i) of FOISA (free and frank provision of advice), 30(b) (ii) (free and frank exchange of views), section 30(c) (substantial prejudice to effective conduct of public affairs) or section 38(1) (b) of FOISA (personal information) of FOISA apply to that information.

An exemption under section 30(b) (i) of FOISA (free and frank provision of advice) applies to some of the information you have requested.

This exemption applies because disclosure would, or would be likely to; inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice in relation to the OECD Independent Review of Curriculum for Excellence will substantially inhibit the provision of such advice 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 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 full and frank advice to Ministers, as part of OECD Independent Review on Curriculum for Excellence. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and 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(b) (ii) of FOISA (free and frank exchange of views), 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 Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view.

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 provide full and frank advice to other official and Ministers on the OECD Review of Curriculum for Excellence.

This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the review making process, which would not be in the public interest.

An exemption under Section 30(c) (substantial prejudice to effective conduct of public affairs) of FOISA applies to some of the information you have requested. It is essential for officials to be able to communicate, often in confidence, with external stakeholders on a range of issues. This includes communication with the OECD in relation to the Independent Review of Curriculum for Excellence. Disclosing the content of this communication, particularly without the consent of the OECD is likely to undermine this organisation’s trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. Such stakeholders may be reluctant to provide their views fully and frankly if they believe that their views are likely to be made public, particularly while these discussions relate to a sensitive or controversial issue. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed policies.

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 officials a private space within which to communicate with the OECD in relation to its Independent Review of the Curriculum for Excellence. This private space is essential to ensure that a range of options and perspectives have been fully considered and evidenced so that, ultimately, final policy decisions can be taken based on fully informed advice and evidence, such as that provided by the OECD.

Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and the OECD, which in turn will undermine the quality of the review, which would not be in the public interest.

A breach of the OECD confidence in relation to their Independent Review of Curriculum for Excellence may lead to their reluctance in future to carry out similar reviews, which means we could lose a valuable source of independent advice and assurance, which would be to the detriment of Scottish services.

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/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

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Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

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