Publication - FOI/EIR release

Correspondence and Briefing held by Scottish Government relating to Transgender Prisoners: FOI release

Published: 4 May 2023
Directorate: Justice Directorate
Part of: Law and order, Public sector
FOI reference: FOI/202300340450
Date received: 27 January 2023
Date responded: 3 May 2023

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

Information requested

“Please provide me with all correspondence, briefing notes, minutes and other information held by the Scottish Government regarding Isla Bryson, formerly Adam Graham, who has been convicted of two rapes. Please include exchanges with other agencies regarding this person's imprisonment.

Specifically, can you provide all correspondence between Isla Bryson, formerly known as Annie Bryson and Adam Graham. We understand Bryson has previously written to the First Minister by email.”

Response

Please accept my apologies for delay in responding to your request.

I attach a copy of some the information you requested as Annex A to C and Attachment to Annex AC. Whilst our aim is to provide information whenever possible, in this instance some information has been provided in the form of an extract because the remainder of the information in that document does not fall within the scope of the request.

Furthermore, we are unable to provide some of the information you have requested because elements of the correspondence you requested have been redacted under exemption in terms of section s.38(1) (b), section 29(1)(a), Section 30(b)(i) and 30(b)(ii), section 25(1), Section 35(1)(b) and (c) and section 36(1) of FOISA.

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, ie names and 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. 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.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation and development of policy on management of transgender prisoners.

This exemption is subject to the ‘public interest test’. We looked at different stages in the policy development. In this case, a distinct and active phase of the current policy development started in January 2023 as a response to public concern around circumstances of an individual case and then a recognition that this phase will impact the ongoing wider Gender Identity and Reassignment Policy Review by SPS which though is in its final stages but will take into considerations the lessons learnt review undertaken during this period.

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 high quality policy and decisionmaking, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on matters relating to this policy review will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development. While disclosure could contribute to debate on a matter of public interest, the exemption is upheld due to the sensitive nature of formulation of that policy and its interaction with personal information. As well as the need to ensure that wherever possible individual's rights are protected, and to ensure policy can be developed in a rigorous manner, the policy and information requested relates significantly to an individual case which adds weight to concluding that the exemption should be upheld.

An exemption under sections 30(b)(i) (Free and frank provision of advice) and 30(b)(ii) (free and frank exchange of views for the purpose of deliberation) of FOISA applies to some the information you have requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. 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 a private space within which officials can provide free and frank advice and views before the Scottish Government reaches a settled public view. Disclosing the content of such free and frank exchange of views will substantially inhibit the communication of such matters in the future, which would not be in the public interest. As an individual case is a key starting point around the consideration of advice, the balance of the assessment around this is weighted even more in favour of withholding the information.

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

An exemption under section 35(1)(b) and (c) [Prosecution of offenders and the administration of justice] of FOISA applies to a small portion of the information you have requested. 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 some public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in avoiding prejudice to ongoing criminal proceedings.

An exemption under section 36(1) of FOISA (confidentiality of communications) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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. recognise that there is some public interest in release as part of open and transparent government, and to inform the 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.

Some of the information requested under this request relates to Gender Identity and Reassignment Policy 2014 which is currently under review. The interim measures announced on 09 Feb 2023 - Recommendations - Transgender prisoner management: urgent case review correspondence - gov.scot (www.gov.scot) will remain in place pending the outcome of the policy review.

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