- 22 Apr 2021
Date received: 14 Mar 2021
Date responded: 29 Mar 2021
Following our response to FOI/202100160401 you have asked a number of further questions in relation to the flying of the European flag on Scottish Government buildings.
(i) confirmation that the First Minister gave the instruction quoted above
ii) confirmation of the date that this instruction was made by the First Minister
iii) any emails or other information held which reference or relate to this instruction
iv) any communication of this instruction from the FM's office to officials, or any other communication relaying the instruction
v) any advice shared to the FM on this instruction
Decisions related to the flying the European flag on Scottish Government buildings were made by the Scottish Cabinet. While our aim is to provide information whenever possible, in this instance we are unable to provide the information under this part of your request, because an exemption under section 30(b) (ii) (the free and frank exchange of views for the purposes of deliberation) applies to it. The reasons for applying this exemption are set out below. Paragraph 2.1 of the Scottish Ministerial Code provides that "the privacy of opinions expressed and advice offered within the Government should be maintained" at all times.
Cabinet minutes are essential elements which support and assist collective discussion in the private space which Ministers need to reach agreed positions.
The weekly meeting of the Scottish Cabinet is the highest decision-making forum within the Scottish Government, and it follows that all information considered by Cabinet must be handled with great care.
Properly functioning Cabinet processes are generally recognised to be of vital public interest: Cabinet government is based on the principle of collective responsibility, which the Scottish Ministerial Code defines in the following terms:
"The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Government should be maintained. … The internal processes through which a Government decision has been made should not normally be disclosed."
(Scottish Ministerial Code, 2018 edition, paragraphs 2.1 and 2.4)
Cabinet minutes are invariably produced on the assumption that they will not be disclosed until a significant amount of time has elapsed. Section 30(b) (ii) (the free and frank exchange of views for the purposes of deliberation) recognises the need to allow Ministers some private space for discussion. 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 maintaining the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can reach a final decision. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy-/decision-making process.
vi) Scottish Government spending or planned or forecast spending on European flags or, if not available, on flags
There are only two SG buildings that fly official flags and since the start of 2021 we have not incurred any additional costs on purchasing European flags. The flags are hoisted by existing SG staff, who complete this task as part of their wider duties and, as the task only takes a very short period of time to complete, we are unable to provide a breakdown of costs.
vii) confirmation of the Scottish Government's standard retention policy for emails (i.e. how long emails are retained for before being automatically deleted)
All information which is part of the corporate record is retained in our electronic Records and Document Management (eRDM) system in line with the procedures that are set out in our Records Management Plan which is available from the Scottish Government website (https://beta.gov.scot/publications/scottish-government-records-management-plan/). The file type guidance documentation (see Supporting Files link from the website) provides detail of how long we retain information in line with the type of file it is held in.
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.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House