Publication - FOI/EIR release

Deputy First Minister communication regarding 2021 exam diet: FOI review

Published: 9 Nov 2021

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

Published:
9 Nov 2021
Deputy First Minister communication regarding 2021 exam diet: FOI review
FOI reference: FOI/202100241427 review of 202100203007
Date received: 16 Sep 2021
Date responded: 18 Oct 2021
Information requested

Your request, reference 202100203007
1. Any emails, text messages, OneNote memos, or other correspondence between John Swinney, his ministerial office and/or special advisers and the SQA on the topic of the 2021 exams diet and alternative certification model between November 1, 2020 to the date of this request.

2. Any emails, text messages, OneNote memos, or other correspondence between John Swinney, his ministerial office and/or special advisers to the National Qualifications Group on the topic of the 2021 exams diet and alternative certification model between November 1, 2020 to the date of this request.

3. The details of any meetings, phone calls or virtual video conferences held between Mr Swinney and any of his ministerial office and/or special advisers and any member of the National Qualifications Group since November 1, 2020 to the date of this request. This should include but not be limited to, details of those who attended, the location and date of the meetings, the agenda, any minutes, and any notes circulated from the meeting, and any follow-up emails or memos.

Your review request, reference 202100241427
Firstly, I would like to express my significant dissatisfaction at the unreasonable wait for a response to the FOI. Given the nature of the subject, releasing this information now four months after initially requested is a significant failure of Ministers.

I disagree with the application of the Section 30 exemptions, namely as this policy is no longer under discussion among Ministers and is past policy rather than current policy due to the return of exams for the 2022 diet.

I also believe the cost exemption should not apply and, in any case, you have not provided me with any justification for its application in terms of the estimated cost of the request and a breakdown of costs. The timescale and scope is sufficiently narrow, I believe, not to be covered by the cost exemption. 

Response

I have carefully considered each of the points raised within your review request and have concluded that the original decision should be confirmed, with modifications.

  • “Firstly, I would like to express my significant dissatisfaction at the unreasonable wait for a response to the FOI. Given the nature of the subject, releasing this information now four months after initially requested is a significant failure of Ministers.”

I sincerely apologise for the length of time taken to issue you with a response to your initial request. There has been a significant amount of interest in decisions taken around the assessment of National Qualifications in 2021 and 2022 and in related issues. As I am sure you will recognise, this has increased demand on those teams who deal with these issues, both in relation to Freedom of Information requests and crucial policy development work. The information requested in this instance was also of a complexity and sensitivity which required input from a number of teams. Hence, regrettably, your case was delayed whilst being dealt with by the relevant teams throughout the preparation and clearance processes.

Please be assured that officials are looking to improve our processes and learn lessons from this extremely busy period, to ensure that we provide a more effective service in future.

  • “I disagree with the application of the Section 30 exemptions, namely as this policy is no longer under discussion among Ministers and is past policy rather than current policy due to the return f exams for the 2022 diet.”

I have carefully reviewed the application of exemptions under section 30(b)(ii) (free and frank exchange of views) in relation to your initial request. Following this review, I have found that additional information should be released from the National Qualification 2021 Appeals Model paper. Attached is the additional information.

However, while our aim is to provide information whenever possible, it remains the case that we are unable to provide some of the information you have requested because it is exempt under FOISA.

An exemption under section 30(b)(ii) of FOISA (prejudice to effective conduct of public affairs – free and frank exchange of views) applies to some of the information requested. Disclosing this information would substantially prejudice the ability of officials and Ministers to exchange views in an open way whilst considering sensitive policy issues such as alternative certification models for National Qualifications.

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 generally as part of open, transparent and accountable government. However, in these circumstances there is a greater public interest in ensuring that free and frank views can be exchanged in sensitive discussions around issues such as alternative certification model for National Qualifications for young people in Scotland, and ensuring that the Scottish Government is able to conduct this aspect of its business effectively.

  • “I also believe the cost exemption should not apply and, in any case, you have not provided me with any justification for its application in terms of the estimated cost of the request and a breakdown of costs. The timescale and scope is sufficiently narrow, I believe, not to be covered by the cost exemption.”

In reviewing the original work undertaken for your Freedom of Information request, I found that there has been significant engagement between Mr Swinney, his ministerial office, special advisers and members of the National Qualifications Group. Having conducted robust searches for correspondence, I am satisfied that your request would cover a substantial volume of information. Over 2,400 documents have been identified as potentially falling within scope of this request. All of this information requires further careful consideration to identify the specific information relevant to your request.

Having removed any duplicates and identified the specific information relevant to your request, we would then have to establish if any exemptions under FOISA apply to any of the information and redact this information as appropriate. We consider that many of the documents would be likely to require some redaction due to the nature of the communication. It is likely that most of the documents will contain some third party personal data.

An overview of the cost calculation can be found within the Annex.

I have concluded that we were entitled to refuse the third part of your request under section 12 and I am satisfied that the original decision should be confirmed.

As noted above, there has been a significant volume of engagement between the parties named in your request. Therefore, you may wish to consider resubmitting your FOISA request with a reduced scope. For example, this could involve specifying a particular subject matter, such as the 2021 exam diet/alternative certification method, or narrowing the timeframe of the request to e.g. a one month period. Please note that I cannot guarantee at this stage that a refined request would not fall within the cost exemption.

About FOI
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FOI202100241427 - Annex

2 page PDF
259.0 kB

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