Communication with COSLA relating to Independent Review of Adult Social Care: FOI review

Information requested

Many thanks for your response. Please could I request a review of this decision as I believe the exemption has not been applied correctly and the public interest test has not been considered.

Citing the Scottish Information Commissioner’s guidance, releasing information should cause “real and demonstrable” inhibition. This is not set out in the response and does not seem to be evident.

The Commissioner suggests, for example, that views communicated ‘as part of an individual’s day-to-day professional functions’ may diminish the risk of substantial inhibition. I would argue this would apply in this case.

The suggestion that “The reason for not releasing the information is it may have a negative impact on how the Scottish Government engages with stakeholders and third parties over the coming months” does not seem to fall under inhibiting the ‘free and frank provision of advice’, which I would interpret as referring to discussions within government.

Furthermore, the Commissioner’s guidance states:
“All of the exemptions in section 30 are subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.”

This does not seem to have been considered in the government’s response.

Response

Further to my letter of 29 November 2021, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for “All correspondence received by or communicated from any of the Scottish Ministers, or their special advisors and officials, with COSLA, in relation to the Independent Review of Adult Social Care, since 1st January 2021”.

I have concluded that a different decision should be substituted.

I have reconsidered all of the information previously withheld under section 30(b)(i) (free and frank provision of advice) of FOISA and I have determined that the exemption did not apply to any of that information. I have now attached a copy of the information and can confirm that we no longer wish to rely on section 30(b)(i) for withholding any information in relation to this request. I apologise for the delay in providing this information to you. As I have determined that we were not entitled to apply section 30(b)(i) to any of the information, I have not gone on to consider the points you raised in relation to the public interest test. However, I acknowledge that our initial response should have set out our considerations in this regard and I apologise for this oversight.

Additionally, some of the information falling within scope of this request was provided to you on 6 September 2021 in response to your previous request reference 202100224935 (email chain dated between 23 March 2021 at 10:50 and 24 March 2021 at 15:55 between Lorraine Davidson and Nicola Dickie), with a small amount of personal data redacted. You may wish to note that this information is also available on our website at: https://www.gov.scot/publications/foi-202100224935/. I therefore consider that an exemption under section 25(1) of FOISA applies to this information as we do not have to give you information which is already reasonably accessible to you.

While our aim is to provide information whenever possible, we are unable to provide a small amount of the information you have requested because an exemption under section 38(1)(b) of FOISA applies to that information as it is personal data of a third party 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.

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FOI202100258302 - Information released

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