Your original request asked for:
1) The number of full time equivalent staff in the Scottish Government who are currently, or are planned to begin work on the "prospectus for an independent Scotland", as mentioned in the Programme for Government on September 7.
2) Any internal correspondence sent from or to the First Minister regarding the prospectus from August 15 to September 7, including - but not limited to - email, briefing notes, Whatsapp messages and text messages.
Your review request asked for:
It would be my contention that the first request for information (the number of civil servants) would be outside the scope of this provision of the Act, given it is simply the number of people working on a specific subject and should as such be released publicly.
As for the second request (correspondence to and from the First Minister about the independence prospectus), the First Minister's view on independence (and the Scottish Government's view for that matter) is widely known. The work being done on the prospectus for independence was also publicly announced through the Programme for Government. The people of Scotland, including the press, have a right to know how decisions are reached within their elected government. This decision is one that could reverberate throughout Scotland for years and plot a course for this country becoming independent and it would be my contention that any exemption to protect the free and frank sharing of views is absolutely overriden by the public interest in knowing the information.
I have completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for information on staff numbers working on and correspondence relating to the "prospectus for an independent Scotland", as mentioned in the Programme for Government on September 7.
Under section 20(5) of FOISA a request for a review of an authority’s response to a FOI request must be made within 40 working days of the date on which the response was received.
As your review request was dated 5 January 2022 which was 41 working days after 2 November 2021 when our response was sent, it would appear that you have missed the deadline for requesting a review. However, under section 20(6) of FOISA, we can accept a late review, and, having considered the circumstances, we have accepted your review request on this occasion.
I have concluded that the original decision should be upheld, with modifications for the reasons set out below.
The first aspect of your review request argued that the “first request for information (the number of civil servants) would be outside the scope of this provision of the Act”. I have reviewed our response to identify the exemption applied to this information, and found that Section 17, information not held, applied. I apologise if this was not clear in our initial response.
As this exemption indicates that we did not hold the information at the time you made the request, I am unable to release the information and have accordingly upheld the previous response. You may, however, find the following recent FOI response helpful, as it concerns a similar topic. Independence prospectus post budget announcement: FOI release - gov.scot (www.gov.scot)
This more recent release indicated that work to prepare an independence prospectus will be co-ordinated by a team in the Constitution and Cabinet Directorate, but will draw on other officials across a range of portfolios who will contribute to varying extents as part of their wider responsibilities in supporting the Scottish Government. It also indicated that the co-ordinating team currently comprises one Senior Civil Servant and ten other officials (5 graded C2, 4 graded C1 and 1 graded B3).
The second half of your review request asks about the application of Section 30(b)(ii), in particular the public interest test to the information within scope.
I have reviewed the information within scope, and the reasoning for the application of the exemption and the public interest test. I have concluded that the application of the exemption, and the public interest test, was appropriate at the time that your request was answered, for the reasons set out in our original response to you.
However, since then, Scottish Ministers have published additional information concerning the independence prospectus. This has altered the balance of factors affecting the application of the exemption and the public interest test, and I therefore consider it appropriate that some of the information within scope now be released, subject to a small amount of redaction to remove personal information. Some of the information you have requested is therefore enclosed in Annex A of this letter.
A small amount of information has been redacted because an exemption under Section 38(i)(b) (Personal Information) of FOISA applies to the names and contact details of Scottish Government officials below Senior Civil Service level. 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 the information outweighs the public interest in applying the exemption.
Some of the information you have requested is available on the Scottish Government’s website at the following link: Programme for Government 2021 to 2022: First Minister's statement - 7 September 2021 - gov.scot (www.gov.scot)
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. However, in the interests of being helpful, the information is included as Item 3 in Annex A.
However, the reasoning for the original decision and the application of Section 30(b)(ii) continues to apply to some of the information within scope, and I consider that disclosure of the information would , or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation.
As set out in our original response to you, this exemption is subject to the ‘public interest test’. I have taken into account all of the circumstances at the point of review, and 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 prospectus for an independent Scotland. This private thinking space is essential to enable all options to be properly considered, so that good policy decisions can be taken. Premature 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 policy making process, which would not be in the public interest.
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.
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Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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