COVID 19 wearing face coverings in shops and on public transport: FOI review

Information requested

1. All documents and information relating to the Scottish Government's decision to make the wearing of face coverings on public transport compulsory on Monday 22nd June 2020, including the scientific evidence on which the decision was based, the rationale of the decision and the full minutes of the meetings between the key decision makers of the policy.

2. All documents and information relating to the Scottish Government's decision to make the wearing of face coverings on public in shops compulsory on Friday 10th July 2020, including the scientific evidence on which the decision was based, the rationale of the decision and the full minutes of the meetings between the key decision makers of the policy.

Response

You have requested a review of the case on the basis that you believe that the public interest assessment conclusion on non-disclosure of information was not applied appropriately.

Further to my review of the case I have concluded that a different decision should be substituted.

On reviewing the information that was not disclosed in response to your original request I have concluded that the exemption from disclosure under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) should not have been applied to the entirety of a number of documents that were withheld.

In relation to part one of your request, I attach a copy of all of the information you have requested  in the Annex with the exception of a small amount of personal data which has been redacted under section 38(1)(b) of FOISA. I have also determined that exemptions under section 30(b)(ii) (free and frank exchange of views) and section 36(1) (legal advice) apply to sections of the information in Document 2.

In relation to part two of your request, within the Annex is the most  of the information you have request with the exception of a small amount of personal data which has been redacted under section 38(1)(b) of FOISA.

In addition to redactions for personal data, I have also determined that exemptions under section 30(b)(ii) (free and frank exchange of views) and section 36(1) (legal advice) continue to apply to information previously withheld.  I acknowledge that the reasons why these exemptions applied was not fully set out in our initial response,

I have therefore set out an additional explanation below:

Section 30(b)(ii)
An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to a small amount of the information. 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. Disclosing the content of free and frank discussions on the wearing of face coverings in retail settings would substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive issue such as measures to control the spread of Coronavirus in Scotland.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of
upholding the exemption. 

I 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 Ministers and officials a private space within which to explore and refine the Government’s position on the requirement to wear face coverings within a retail setting, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken.

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 decision making process, which would not be in the public interest.

Section 36(1)
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to a small amount of information 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, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.

I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 public or private organisation.

Section 38(1)(b)
An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, 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. In addition, you will note that some information has been redacted because it does not fall within the
scope of your request.

This means that it does not relate to the Scottish Government's decision to make the wearing of face coverings on public transport or in shops compulsory. Where appropriate this information has been marked as [redacted – out of scope].

I am happy to release the additional information contained in the Annex .

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.

FOI - 202100215047 - Annex

File type

28 page PDF

File size

481.6 kB