Communications relating to the Tinker Experiment: FOI review

Information requested

Your request, reference 202100200656
All government emails , letters or memos or internal notes or transcripted telephone calls regarding The Tinker Experiment and any reference to an apology- with a particular interest on any documentation between the Government and its lawyers on the matter ( any communication to our from the governments lawyers on the subject of an apology to the Scottish Gypsy Traveller community in general or relative to The Tinker Experiment). I would like copies of any communications from And to Christina McKelvie ( Equalities Minister ), from and to any SNP MP and from and too any government civil servants.

I would like this apology to cover the period of 25th November 2018 to 11 th May 2021.

Your review requested, reference 202100228699
I wish to appeal the above FOI further to its full dispatch to me on 18/6/21. It is a completely UN acceptable response as it contains practically none of the the information I requested ( which was all correspondence relating to the question of an apology and you can get a copy of my original request from the writer of the response . It is heavily redacted on the grounds that it does not allegedly pass the public interest test and this is a complete red herring I believe to avoid us seeing crucial information written about us and the subject of the apology which I suspect may also be derogatory judging by the tone of the visible information. Also it does not represent open government partnership by being hidden and obstructive. It also has a factually incorrect meeting date in it and contains information we did not ask for by simply returning our own correspondence. For the avoidance of doubt please obtain a copy of our original request. 

I wish to receive the full unredacted response to my original FOI request failing which I will be progressing matters to the Information Commissioner.

Response

Firstly, I would like to apologise for the delay in responding. I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response.

I have concluded that the decision should be confirmed, with modifications.

In conducting my review I have taken account of the points you raised in your request for review and fully reconsidered the circumstances of the case.

I have determined that some further information can now be disclosed. Attached is a copy of this information in Annex A. I would like to express my apologies for the over redaction in the original response. I also apologise for the delay in the decision letter being sent to you, this was an oversight as the user was unfamiliar with the IT system.

I can confirm that we no longer wish to rely on an exemption under section 29 of FOISA. However, I am satisfied that an exemption under section 36(1) (legal advice) continues to apply to most of the information you have requested. In addition, exemptions under section 30(b)(i) (free and frank advice) (as highlighted in the attached submission document) and section 38(1)(b) (personal information) continue to apply to a small amount of the information you requested for the reasons set out in Annex B.

Annex B
Section 38(1)(b) – applicant has asked for personal data of a third party
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, eg 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.

Section 30(b)(i) – free and frank provision of advice
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to a small amount of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive issue such as the next steps in considering calls for a formal apology for the historical mistreatment of Gypsy/Travellers in Scotland.

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 a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s position on the calls for a formal apology for the historical mistreatment of Gypsy/Travellers in Scotland, 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, based on the best available advice, so that good decisions can be taken.

Section 36(1) – legal advice
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to most 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 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.

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.

FOI202100228699 - Annex A

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3 page PDF

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107.6 kB