- The information the Scottish Government has been instructed to disclose following the SIC decision 065/2023.
- Internal correspondence on the initial handling of the FOI that led to the appeal which in turn led to the SIC decision noted above, and internal correspondence around how the appeal process was handled once the SIC process had begun.
The attached Annex 1 provides the response to part (1) of your request. This collated annex lists document headers in sequential order from DOCUMENT 3 through to DOCUMENT 13. These are the document names as they were provided to the information commissioner. DOCUMENT 1 and 2 are otherwise accessible as part of previous FOI response publication and can be found here:
https://www.gov.scot/publications/foi-202100227221/. DOCUMENT 5 is being re-released within this annex for ease of reference. Where other documents are not included, they have been found to be out of scope of your request. That is to say that the Information Commissioner has not instructed the Scottish Government to disclose further information from these documents as part of decision 065/2023. The Scottish Government has recently published its response to decision 065/2023 and this is available here: https://www.gov.scot/publications/timeframe-required-for-an-independent-scotland-tore-join-the-eu-foi-appeal/.
The attached Annex 2 provides the response to part (2) of your request and is divided into four sub-annexes (A, B, C, D) which respectively collate internal correspondence on the handling of FOIs 202100227221 (original case), 202100234945 (the review), Appeal Stage 1, and Appeal Stage 2.
In Annex 2, exemptions to some of the information you have requested are applied under:
Section 38(1)(b), Personal data of a third party
Personal information of individuals below Senior Civil Service grade and those of individuals external to the Scottish Government have been redacted on the grounds of section 38(1)(b), personal data of a third party. 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.
Section 30(c) - Substantial prejudice to effective conduct of public affairs
It is essential for Ministers and officials to be able to communicate with each other, receive advice from specialists (including the FOI Unit) and agree an approach to the handling of FOI requests before making a decision which is then communicated to the requester. Disclosing the content of these communications is likely to result in discussions about FOI handling being less detailed, which would diminish the quality of the advice provided to Ministers and officials. This is particularly the case where the Scottish Information Commissioner is carrying out an investigation into the handling of a request in accordance with section 47(1) of FOISA. It is for the Commissioner to decide whether authorities have dealt with requests in accordance with Part 1 of FOISA and he does so in light of the application for a decision made by the requester and any comments offered by the authority in accordance with section 49(3)(a) of FOISA. It would substantially inhibit authorities’ ability to offer comments in support of their approach and to participate fully in the investigation if they were required to disclose the underlying advice on which that approach was based before the Commissioner has completed his investigation and reached a conclusion. Moreover, if the Commissioner requires an authority to issue a new review response as part of his decision, it would unduly constrain authorities’ ability to decide what that response should be (in light of the Commissioner’s decision) if they have already had to disclose the underlying advice on handling that they have received. Taken together, we consider that disclosing the content of communications about the approach to the handling of FOI requests while there is an ongoing investigation by the Commissioner would be substantially prejudicial to the effective conduct of that investigation, and that this would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.
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. However, there is a greater public interest in ensuring that Ministers and officials are able to discuss and agree an approach to the handling of FOI requests before making a decision which is communicated to the requester, and in ensuring that authorities are able to participate fully in the Commissioner’s investigation process.
Section 36(1), Confidentiality of communications
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) 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. We 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.
Section 30(b)(ii), Substantial inhibition to free and frank exchange of views
A small portion of the released internal communications information has been withheld on the grounds of section 30(b)(ii). This exemption applies because disclosure would, or would be likely to, substantially inhibit the free and frank exchange of views for the purposes of deliberation.
This exemption is subject to the ‘public interest test’. Whilst recognising a public interest in disclosing information as part of open, transparent and accountable government, we consider that there is a greater public interest in the ability for officials to have a private space within which to discuss and explore issues before reaching a conclusion.
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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Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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