Care home discharge data request submitted to Public Health Scotland: FOI review

Information requested

Your request, reference 202100244601

• Emails from/to the Cabinet Secretary for Health and Social and their staff, and any email attachments;
• Internal meeting minutes, or reports;
• Media briefing notes prepared by the Cabinet Secretary and/or government press office in case of approaches for comment by media outlets.

Your review request, reference 202100256097 
I would like a review of this response on the following grounds:

• Many email addresses are redacted. I would argue that these should not be redacted as this is official government communication on a matter of public interest and so there is a legitimate argument for knowing who was consulted on each email;
• Similarly many names, and job titles, within the body of the emails have been redacted. Again I would argue that the name of anyone working within the government, or as a consultant/adviser acting in an official capacity, should not be redacted seeing as the conversation around the release of this data was in the public interest;
• Email on page 1 dated 11 June 2021 @ 09:34 – it appears two sentences (or more) may have been redacted after the sentence ending “notice of this from PHS”. If so, it is unclear that this would include personal data under section 38(1)(b) so why is it redacted?
• Page 4 – two redactions after sentence ending “view on the bid”. Unclear that this contains personal data so why redacted?
• Email on page 4/5 dated 29 Sept 2021 @ 18:10 – it appears the “suggested line” has been redacted. If so, this would not be personal data under section 38(1)(b) so why is it redacted?
• Email on page 5 dated 29 Sept 2021 @ 17:59 – it appears suggested “lines” have been redacted. If so, this would not be personal data under section 38(1)(b) so why is it redacted?
• Email on page 6 dated 29 Sept 2021 @ 16:20 – it appears a) something has been redacted after “policy leads will want to consider too but….”, and b) two “existing lines” have been redacted, as well as c) a line after “if we need to say anything on this bit…”. Again none of these sections appear to relate to personal data under section 38(1)(b) so why are they redacted?
• Email on page 6 dated 29 Sept 2021 @ 15:34 – it appears something after “agreed lines” has been redacted. If so, this would not be personal data under section 38(1)(b) so why is it redacted?
• Email on page 7 dated 29 Sept 2021 @ 11:43 – it appears something in lines 4 and 5 (where a data date range is mentioned) has been redacted. If so, this would not be personal data under section 38(1)(b) so why is it redacted?

Response

I have concluded that a different decision should be substituted.

Having reviewed your request and the initial response provided and all the information that that has been redacted, I am applying the exemption at 30(b)(ii) (substantial inhibition of free and frank exchange of views for the purposes of deliberation) of FOISA to some of the information that you have requested.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. 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 Scottish Government’s response to discharge to care home data will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive or controversial issue such as the cause of covid outbreaks and deaths in care homes.

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 Ministers and officials a private space within which to explore and refine the Government’s position on the discharge to care home data.

I apologise that this exemption was not applied to that information in our initial response. However, having reviewed the information that was redacted I have decided that some information that was initially withheld should be released and have done that here.

I have also reviewed the information withheld under section 38(1)(b) (personal data) of FOISA. I have concluded that some of this information should be released and have done so here.

However, I have upheld the application of the exemption at section 38(1)(b) of FOISA to some of the names contained within the information requested. Disclosing this information 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. I am continuing to withhold the names of junior staff members, but am releasing names of senior staff. The names of staff below Senior Civil Service level are only released under exceptional circumstances. These individuals do not have a public profile and I am not satisfied that there is a legitimate interest in releasing their names. I have ensured that information in email addresses after the @ is released, meaning that you are able to understand what organisations are involved in email exchanges to aid understanding of the information released.

In the attached Annex are the documents with the revised redactions.

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FOI202100256097 - Annex A

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