COVID-19 return to school: FOI review

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

Information requested

Further to my acknowledgement letter of 16 March, I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA). You said:

“The government is already in breach of the law and is now asking me to allow it to go to 150% of the stated time limit , with the possibility of going even further. Could you please take this as a formal request for a review of the government's handling of this case?”

In accordance with section 21(4) of FOISA, I have also reached a decision on your initial request (202100149409):

“Today the First Minister announced a limited reopening of schools, including for senior phase pupils in order to complete practical work.

She stated that this meant that between 5-8% of secondary school pupils would be in school at any one time.

I would like to know how the government arrived at this figure. For example, is it a calculated figure based on data regarding pupils numbers, subjects entries etc? Or is it a figure arrived at as a limit in order to keep Covid infections down? Or is it something else entirely?

  • Please advise how the government arrived at the 5-8% figure used today
  • Please release any briefings, analysis or other documentation regarding this figure.”


I can now provide our response to your original request. Attached is a copy of most of the information you have requested.

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 an exemption under section 38(1)(b) of FOISA (personal information) applies to some of that information. This exemption applies because it is personal data of a third party, ie 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 29(1)(a) of FOISA (formulation or development of government policy) also applies to some of the information requested because it relates to the development of the Scottish Government’s policy on the reopening of schools during the pandemic. 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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications.

In addition, some of the information contained within the documents is outwith the scope of the request and has therefore been redacted.

About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at

FOI202100176220 - Information released 1
FOI202100176220 - Information released 2
FOI202100176220 - Information released 3
FOI202100176220 - Information released 4


Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road

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