Petition PR1458 and Scottish Government's commitment to create a register of Judges interests: FOI Review

Information requested

Original request - 202400433029

“This is a request for review of the redactions applied to the FOI disclosure in relation to my request dated 24 September 2024. Given the work undertaken by the Scottish Government since the 2021 'commitment' (and similar commitment announced by the ruling SNP) to create a register of judges interests. and that some thirteen years have passed since this petition was filed at the Scottish Parliament, it is clearly in the public interest, and in the interest of the petitioner (who has never been consulted contacted or approached for any views by the Scottish Govt since learning of the 2021 commitment) to create a register - for all the redactions within the released material to be withdrawn and the material released unredacted.”

Response

Further to my letter of 31 October, I have now completed my review of our response in respect of your request under FOISA. In doing so, I have considered the comments made by you in your request for a review, which are as follows: 

“This is a request for review of the redactions applied to the FOI disclosure in relation to my request dated 24 September 2024. Given the work undertaken by the Scottish Government since the 2021 'commitment' (and similar commitment announced by the ruling SNP) to create a register of judges interests. and that some thirteen years have passed since this petition was filed at the Scottish Parliament, it is clearly in the public interest, and in the interest of the petitioner (who has never been consulted contacted or approached for any views by the Scottish Govt since learning of the 2021 commitment) to create a register - for all the redactions within the  released material to be withdrawn and the material released unredacted.”

Outcome of review

As you are seeking a review based on the application of the specific exemptions set out in your request, I have confined my review to the documents where those exemption(s) were applied.

The documents that fall within the scope of your request relate to section 29(1)(a) (formulation or development of government policy), and personal information (section 38(1)(b) of FOISA).

I have reconsidered the applicability of the above exemptions against each of the documents in response to your original FOISA request 202400433029:

“I would like to make a Freedom of Information request for information contained in documents, meetings, communications and discussions held by the Scottish Government and anyone acting for it – and any other person or organisation or public authority including the Scottish Parliament, MSPs, MPs, Lord President, Judicial Office, Scottish Courts and Tribunals Service, Law Society of Scotland, Faculty of Advocates and any other organisation, relating to Petition PE1458 and the Scottish Government's commitment to create a register of judges' interests as called for in Petition PE1458 and any work by the Scottish Government and any other organisation consulted by the Scottish Government relating to proposals contained in Petition PE 1458 and any other material considered by the Scottish Government in relation to and accumulated as a result of Petition PE 1458 including any communications with the Scottish Parliament and any others, including communications with, or representations from MSPs, former MSPs, members of the legal profession and judiciary, academics, and anyone else - to create a register of judges' interests. from 20 October 2023 to the date of this FOI request”

I have reconsidered the applicability of the public interest test to determine whether, in all the circumstances of the case, the public interest in maintaining the exemptions outweighs that of the disclosure of the information.

I have concluded that the original decision should be confirmed, with modifications.

Section 38(1)(b) (personal information)

Following review, it has been identified that there are some inconsistencies in respect of the redaction of some individuals named within the documents. For example, there are instances of senior officials’ names being redacted, while being unredacted on other pages. I have corrected this within the updated response. In line with the standard Scottish Government approach, I have altered the redaction of personal information within the email addresses included, so that only the names of relevant individuals are redacted, while the domain name is released. For example ‘redacted’@gov.scot. Where the first name of an individual appears, without surname, this is included in the updated response. Similarly, the updated response now releases the email addresses of the Solicitor General, the Solicitor to the Scottish Government and Communications.

Consideration has been given to personal information of individuals who may have a publicly available profile which references their public life and not solely their private life. For example, the updated response now releases Lady Wise’s name as a judicial office holder.

However, some information remains exempt under 38(1)(b) of FOISA. An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, e.g. 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.

Section 29(1)(a) (formulation or development of government policy) 

Following review, we consider that, 29(1)(a)( formulation or development of government policy) applies to the remaining withheld information.

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 the Scottish Government’s policy in respect of a judicial register of interests.

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 high quality policy and decision-making, 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 in respect of a judicial register of interests 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.

In respect of the email of 06 March 2024 within the documents there is information withheld. Following a review, it is considered appropriate to release as factual information which is publicly available. For ease of reference this states:

“The Guidance to Judicial Office Holders on Judicial Ethics in Scotland was updated in late 2023 and has now been published on the Judiciary of Scotland website at the following link.”

“a publicly available register at the following link.”

In respect of the email of 11 March 2024 within the documents there is information withheld. Following a review, it is considered appropriate to release as factual information which is, or was publicly available. The link is included below however note that the link is no longer functional and therefore the information within is not held by the Scottish Government: For ease of reference this states:

“2016 principles STATEMENT OF PRINCIPLES OF JUDICIAL ETHICS (judiciary.scot)

In respect of the email of 22 December 2023 within the documents there is information withheld. Following a review, it is considered appropriate to release this information which for ease of reference states:

Perhaps in the margins of the meeting re “tribunals”

In respect of the email of 05 December 2023 within the documents there is information withheld. Following a review, it is considered appropriate to release this information which for ease of reference states:

“discuss the tribunals landscape”

I attach a revised annex which reflects this review.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202400436948 - Information released - Annex

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