Further to my letter of 14 January 2022, I have now completed my review of Any internal correspondence among civil servants within the Children and Families Directorate, Equality, Inclusion and Human Rights Directorate, senior civil servants, ministers and special advisers which includes the name of the charity "ForWomen Scotland" or discusses the organisation's work, since the start of 2021.
Further to my letter of 14 January 2022, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:
‘Any internal correspondence among civil servants within the Children and Families Directorate, Equality, Inclusion and Human Rights Directorate, senior civil servants, ministers and special advisers which includes the name of the charity "ForWomen Scotland" or discusses the organisation's work, since the start of 2021.’
I have concluded that the original decision should be confirmed, with modifications.
The request for a review questioned whether the redactions made in the original response were appropriate. The findings are as below.
a) Section 38(1)(b) - Personal information
- The original response stated that: ‘Section 38(1)(b) (personal information) applies to a small amount of the information requested. because it is personal data of a third party, i.e. 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.’
- These redactions subject to Section 38(1)(b) should be upheld. There are a number of relevant redactions throughout – which should largely be identifiable in line with the format of emails shared (found in the ‘To’ field, within email signatures, and mid-sentence where it can be reasonably inferred that an individual is being referenced.) These do not in themselves create a barrier to understanding the content of correspondence between the different parties in the civil service that would mean the release of personal data was ‘necessary’ to fulfil the request, to use the terminology of the relevant legislation.
b) Section 36(1) - confidentiality
- The original response stated that: ‘Some information has been held under Section 36(1) of FOISA which pertains to emails between the Scottish Government and Legal Advisors. These are legal privileged and exempt as communications need to be maintained for ongoing legal proceedings.’
- I am satisfied that the information redacted in the emails listed in the attached spreadsheet is privileged information for the reasons outlined above and was correctly withheld as such under s36(1) of FOISA in our initial response. However, I note that this exemption is subject to the public interest test which was not explicitly considered in our response to your original request. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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.
c) Section 30(b)(ii) - Free and frank exchange of views
- On review, I have concluded that section 30(b)(i) (the free and frank provision of advice) does not apply to any of the information withheld, but I am upholding the application of 30(b)(ii) which relates to the free and frank exchange of views for the purposes of deliberation. Where 30(b) (i) was applied originally, I have substituted this for 30(b)(ii).
- 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. Disclosing the content of free and frank discussions will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive issue.
- As laid out in the original response, this exemption is subject to the public interest test. I have reconsidered that here and have found that the public interest lies in upholding the application of the exemption for the reasons laid out in the original response.
On review, I have found that some additional information should be released and have enclosed that in an Annex to this letter. I have withheld some information from that supplied here under sections 30(b)(ii) (free and frank exchange of views), 36(1) (confidentiality) and 38(1)(b) (personal data) of FOISA for the reasons explained above.
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.
FOI 202200272543 - Information released - Annex B
- File type
- Excel document
- File size
- 12.6 kB
FOI 202200272543 - Information released - Annex A
- File type
- 3 page PDF
- File size
- 112.6 kB
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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