Publication - FOI/EIR release

Correspondence relating to Organisation for Economic Co-operation and Development review: FOI release

Published: 2 Jun 2021

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

Published:
2 Jun 2021
Correspondence relating to Organisation for Economic Co-operation and Development review: FOI release
FOI reference: FOI/202100175114
Date received: 12 Mar 2021
Date responded: 17 May 2021
Information requested

All correspondence between the Cabinet Secretary for Education (including Officials of his office) with OECD relating to the OECD review of Scottish education.

In particular, I would like to see all correspondence and information relating to the contract between the Scottish Government and OECD.

Response

In relation to your first question, we have interpreted this as being a request for details of correspondence specifically between the Deputy First Minister and Cabinet Secretary for Education and Skills (as well as his private office officials).

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested because there has been no direct correspondence between the Deputy First Minister and Cabinet Secretary for Education and Skills (or his private office officials) and the OECD on the subject of the OECD Independent Review of Curriculum for Excellence.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

In relation to your second question, while our aim is to provide information whenever possible, in this instance we are unable to provide all of the information you have requested because exemptions under Section 36(1) (legal privilege), Section 30(c) (Prejudice to effective conduct of public affairs) and Section 38(1) (Personal data) of FOISA applies to that information. The reasons why those exemptions apply are explained below

An exemption under section 36(1) of FOISA applies to some of the information you have requested because some of the documents and correspondence are covered by 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 private or public organisation.

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.

An exemption under Section 30(c) (substantial prejudice to effective conduct of public affairs) of FOISA applies to 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 their preliminary draft report on the Independent Review of Curriculum for Excellence. Disclosing this information, 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 the 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.

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Contact

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

The Scottish Government
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