Health and Care Recovery (Winter Planning): FoI review

Information requested

I am not happy with this response and request a review is conducted. 

No public interest test has been considered and the official has not applied the legislation correctly. I am well aware "Section 30(b)(ii) is an exemption that protects the free and frank provision of
advice," however the official cannot simply restate the legislation without giving an explanation. An explanation, and the details of how the public interest test has been considered - and how the public interest of releasing or withholding the information - has been balanced on both sides. Each and every use of the exemption - which has been used 39 times in the response - should be demonstrated. 

All information is in the public interest and should be released. As no details of the assessment of the public interest test has been provided, I have nothing to respond to.

 

"Information relating to the Health and Care Recovery (Winter Planning) statement given to Parliament on 4 October 2022 by the then The Cabinet Secretary for Health and Social Care (Humza Yousaf). Please provide 

• Briefing materials to support the giving of and preparation for giving that statement
• any correspondence relating to the statement including discussion about the detail and/or requests for clarification or questions about the content of the statement."

Response

In line with your request for review, the review is limited to the application of section 30(b)(ii), and I have not reconsidered the information withheld under 38(1)(b).
I have concluded that the original decision should be confirmed, with modifications.

Having reviewed the original response, I have concluded that some of the information originally withheld under 30(b)(ii) should now be released to you. I enclose a copy of that information (highlighting the information that was not enclosed with the original response).

The original response noted that an exemption under section 30(b)(ii) of FOISA applied to some of the information, and that that section relates to free and frank provision of advice (although in fact section 30(b)(ii) relates to free and frank exchange of views). My conclusion is that sections 25(1) (information otherwise accessible), 30(b)(i) (free and frank provision of advice) and 30(c) (otherwise prejudice effective conduct of public affairs) also apply to some of the information requested, and I have upheld the application of 30(b)(ii) (free and frank exchange of views) to other parts of the information requested.

The exemption at 25(1) applies because some of the information you have requested is available from websites which I have annotated beside the respective redactions. 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 websites listed, then please contact me again and I will send you a paper copy.

The exemption at 30(b)(i) applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of this free and frank advice on health and care recovery and winter planning would substantially inhibit the provision of such advice in the future.

The exemption at 30(b)(ii) 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 these free and frank discussions on health and care recovery and winter planning would substantially inhibit such discussions in the future.

The exemption at 30(c) applies because disclosure would, or would be likely to, prejudice substantially the effective conduct of public affairs. Disclosing this information would substantially prejudice our ability to develop ministerial statements because it would compromise the private space within which officials and Ministers can iterate drafts. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

The original decision should have set out the public interest arguments relating to the exemptions under section 30(b)(ii) and I am sorry that this was not included in our initial response. I have considered the public interest test in relation to the exemptions under sections 30(b)(i), 30(b)(ii) and 30 (c). Taking account of all the circumstances of this case, I considered if the public interest in disclosing the information outweighed the public interest in applying the exemption. In respect of the exemption under section 30(b)(i) I found that, on balance, the public interest lay in favour of upholding the exemption. I
recognise there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.

I further recognise the public interest in health and care recovery and winter planning. However in this case there was a greater public interest in allowing a private space within which officials could provide full and frank advice to Ministers. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn would undermine the quality of the policy making process, which would not be in the public interest. In respect of the exemption under section 30(b)(ii) I also found that, on balance, the public interest lay in favour of upholding the exemption. 

As noted above, I recognise there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate – and I further recognise the public interest in health and care recovery and winter planning. However in this case there was a greater public interest in allowing a private space within which officials could exchange views freely. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers
and officials, which in turn would undermine the quality of the policy making process, which would not be in the public interest.

In respect of the exemption under section 30(c) I also found that, on balance, the public interest lay in favour of upholding the exemption. As noted above, I recognise there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate – and I further recognise the public interest in health and care recovery and winter planning. However in this case there is a greater public interest in allowing a private space within which officials and Ministers can share iterative drafts freely for the purposes of developing parliamentary statements. Premature disclosure is likely to undermine this process, which in turn would detract from informing the parliamentary debate. 

Where the original response enclosed information, the annotation of how the respective exemptions were applied was not always correct, as in some locations section 38 rather than section 30 was denoted. Also the original response did not correctly itemise the information for release. The information enclosed here corrects these errors, for which I apologise. 

The original response should also have included an apology for missing the statutory 20-day deadline, and I apologise for that now.

 

About FOI

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 202300360521 - Information released

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