Publication - FOI/EIR release

COVID 19 deaths in care homes: FOI release

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

Published:
21 Jul 2021
COVID 19 deaths in care homes: FOI release
FOI reference: FOI/202100207401
Date received: 27 May 2021
Date responded: 20 Jul 2021
Information requested

You asked for any correspondence between special advisers or officials in the community health and social care directorate and the National Records of Scotland (NRS) on the topic of the publication of Covid-19 deaths in care homes broken down by individual care home between September 29, 2020 to 27 May 2021.

You also asked for a list of meetings, phone calls, video chats, 'coffees', informal or formal, including any agendas, notes, minutes, memos, handouts, and details of their location, attendees and time, between officials in the health and social care directorate and officials from the NRS on the topic of the publication of statistics relating to Covid-19 deaths in care homes from September 29, 2020 to 27 May 2021.

Response

Please find attached copies of most of the information you requested.

An exemption under section 38(1)(b) of FOISA applies to a small amount of the information you have requested. This is because the information requested contains personal data of a third party, i.e. the names contact details and e-mail addresses 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.

Certain redactions are made because an exemption under sections 30(b)(i) (Free and frank provision of advice), 30(b)(ii) (Free and frank exchange of views for the purposes of deliberation) and 30(c) (Prejudice to effective conduct of public affairs) of FOISA applies to the information. The reasons why these exemptions apply are explained in the Annex. 

ANNEX A
REASONS FOR NOT PROVIDING INFORMATION

An exemption applies

An exemption under sections 30(b)(i) (Free and frank provision of advice) 30(b)(ii) (Free and frank exchange of views for the purposes of deliberation) of FOISA applies to some of the information you have requested. This has been applied to detailed and free and frank discussions, as part of the handling of the release of the release of NRS data.

These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. In determining that this information is exempt, we have had regard to the need for officials to be able freely and frankly to consider how to handle the release of sensitive information appropriately. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public view. Disclosing the content of free and frank advice on policy proposals and development options in relation to the release of sensitive data 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 because of the general 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 Ministers.

An exemption under section Section 30(c) (Substantial prejudice to effective conduct of public affairs) of FOISA applies to some of the information you have requested. We consider disclosure of this information would be likely to prejudice the effective conduct of public affairs. Disclosing the content of these communications, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. Stakeholders will 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 issue. This would significantly harm the Government’s ability to carry out many aspects of its work.

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.

An exemption under section 36(1) of FOISA (confidentiality of communications) applies to some of the information requested because it is legal advice and disclosure would breach 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 about legal advice.

About FOI

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.

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG