Decision making process for 2017 misoprostol approval: FOI release

Information requested

Please provide any information you have about the decision-making process that led to the 2017 approval for misoprostol to be taken at home for the termination of pregnancy (https://www.publications.scot.nhs.uk/files/cmo-2017-14.pdf).

Response

I enclose a copy of some of the information you requested.

Some of the information you have requested, the approval itself, and accompanying CMO letter and Scottish Abortion Care Providers guidance, is available from https://www.publications.scot.nhs.uk/files/cmo-2017-14.pdf. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. Given this is mentioned in your request, I assume you can access it, but if you have any problems accessing the link, then please contact me again and I will send you a paper copy.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 30(c) (effective conduct of public affairs), 36(1) (legal advice) or 38(1)(b) (personal data) of FOISA apply to that information. The reasons why those exemptions apply are explained in Annex A to this letter.

ANNEX A

An exemption applies

An exemption under section 38(1)(b) of FOISA applies to some of the information you have requested. This is because it is personal data, such as names, email addresses, phone numbers or other identifiable information about non-senior officials and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and 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.

Exemptions apply, subject to the public interest test

An exemption under section 36(1) of FOISA applies to some of the information you have requested because it is legal advice or emails seeking 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, transparent and accountable 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. The release of the content of such legal advice is likely to be appropriate only in highly compelling cases.

In addition, an exemption under section 30(c) of FOISA applies to some of the information you have requested. This exemption applies, firstly, because revealing the source of the Scottish Government’s legal advice on abortion approvals would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on abortion law. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption. In addition, secondly (in relation to separate withheld information), the exemption recognises the need for officials to have a private space within which to discuss drafts of documents like CMO letters or external guidance with clinical colleagues and revise them to ensure the final versions have been fully considered before publication. Disclosing the content of draft documents, where these were amended, could inhibit the ability to gather frank comments and advice on such documents in the future and so would also substantially prejudice the effective conduct of public affairs.

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 because as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in, firstly, enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. Secondly, it is outweighed by the public interest in ensuring that key or sensitive draft documents, such as those on abortion, can be discussed and commented on freely before providing clear and accurate information or advice for health providers in final versions.

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 202500455437 - Information Released - Annex B

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