Publication - FOI/EIR release

Scottish Government request responses and use of free & frank advice exception: FOI release

Published: 17 July 2025
Directorate: Communications and Ministerial Support Directorate
Topic: Public sector
FOI reference: FOI/202500461547
Date received: 10 April 2025
Date responded: 12 May 2025

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

Information requested

In this request, when I refer to ‘free and frank advice exceptions’ I mean to refer to the application of a exemption from disclosure of requested information from a public body as an FOI or EIR request on the grounds that disclosure would inhibit the free and frank provision of advice, inhibit the free and frank exchange of views, prejudice the effective conduct of public affairs, or inhibit the development or consideration of government policy. Pertaining to the period 1 September 2024 to present day, please provide the following information by month:

1. Number of FOI/EIR requests received by the Scottish Government.

2. Number of FOI/EIR responses from the Scottish Government. Of these:

a. Number where no new (i.e. not previously published) information was provided (instances where all requested information refused or was already public).
b. Number where new information was provided.

3. Number of FOI/EIR responses from the Scottish Government which applied a free & frank advice exception.

4. Number of requests for internal review received by the Scottish Government for an FOI/EIR response which had applied a free & frank advice exception (if possible, please break this down by number that contested the application of this exemption and those that were only contesting on other grounds)

5. Number of responses to a request for internal review (i.e. the result of the internal review) sent by the Scottish Government, and of these:
a. Number of review request responses whose initial FOI/EIR response had applied a free & frank advice exception, and of these:

i. The number of requests for review which contested the application of the free & frank advice exception.
ii. The number of internal review results which overturned, to at least some degree, the initial application of the free & frank advice exception.
iii. The number which were latterly appealed to the information commissioner.

6. Please provide or link to copies of all FOI/EIR review request responses qualifying under point 5(a)(ii) here, noting which pieces of information that were initially withheld under free & frank advice were subsequently provided.

7. Number of times a Scottish Government response to a request for internal review (i.e. the result of the internal review) were appealed to the information commissioner, and of these:

a. The number of appeals of cases where the Scottish Government had upheld the application of a free & frank advice exception, to at least some degree, in its response to the request for internal review, and of these, the number of appeals which explicitly appealed to the information commissioner on the grounds of contesting the Scottish Government’s application of a free & frank advice exception.

Given your explanation of what you meant by your reference to “free and frank advice exceptions”, we have understood your request to refer to information withheld under the following FOISA exemptions –

• 30(b)(i) – free and frank advice
• 30(b)(ii) – free and frank exchange of views
• 30(c) – substantial prejudice to the effective conduct of public affairs
• 29(1)(a) – formulation or development of government policy.

There is no “free and frank advice” exception under the EIRs. All figures below are up to the date of your request, 10 April 2025.

Response

Question 1

We have received 4170 requests under FOISA or the EIRs since 1 September 2024. This figure does not include requests for review.

Question 2

We have provided 3610 responses under FOISA or the EIRs since 1 September 2024. Again this does not include review responses.

2a. Responses where no information was provided in the response are recorded in our case management system as “no release”. I have also included within the figure for responses where no information was provided responses where the request is invalid, vexatious or where the response is noted as being clarification inadequate. There are 849 cases where the response was recorded as being no release, invalid, vexatious or clarification inadequate between 1 September 2024 and 10 April 2025 (the date of your request). There are 708 cases where the response is recorded as being “no release”.

Where responses under FOISA provide information that is already publicly accessible we may apply the exemption at section 25(1) of FOISA, which means that information already accessible to the requester does not have to be supplied in response to a request for information. However, you should note that this does not necessarily mean that the information withheld under section 25(1) is already published, it just needs to be accessible already to the requester. The number of responses between 1 September 2024 and 10 April 2025 where section 25(1) is recorded on our case management system in cases where that are also recorded as being “no release” is 61.

However, it is also the case that some FOISA responses provide information that is publicly accessible without applying the exemption at section 25(1) and, because information is provided, do not record the release as “no release” on our case management system. Such cases may be recorded as “full release”.

Under the EIRs, when providing information that is already publicly accessible, our response should refer to regulation 6(1)(b). Unfortunately, our case management system does not record this information meaning that in order to provide an answer to this question for EIRs a manual review of the 856 EIR responses issued within the time period of your request would need to be undertaken. We would also need to undertake a review of the 1486 FOISA responses recorded as being full releases.

In this instance the costs of locating, retrieving and providing the information requested (i.e. instances where all requested information refused or was already public ) would exceed the upper cost limit of £600. This is based on an average time to review each case of around 1.5 minutes. This amounts to almost 59 hours of work meaning that the cost to comply with this part of your request is £885. Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. You could consider asking for information for a shorter time period, or specifying particular subject areas that you are interested in with regards to responses.

You may also find it helpful to look at the Scottish Information Commissioner's 'Tips for requesting information under FOI and the EIRs' on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

2b. The number of responses noted on our case management system as being full or partial releases, i.e. responses that provide at least some of the information requested, is 2691.

Question 3

As noted above, we have understood “free and frank advice exceptions”, to refer to information withheld under the following FOISA exemptions –

The number of requests that applied any of the exemptions listed above in the time period covered by your request is 369. This is broken down as follows –

• Section 29(1)(a) – 118 responses
• Section 30(b)(i) and (ii) – 182 responses
• Section 30(c) – 69 responses

As noted above, there is no equivalent exception for “free and frank advice” under the EIRs. Therefore, we do not hold information that answers this question in terms of EIRs responses. This is a formal notification under section 17(1) of FOISA that this information is not held.

The exceptions available under the EIRs are listed on the Scottish Information Commissioner’s website – EIRs exceptions | Scottish Information Commissioner.

Question 4

As noted above, we have understood “free and frank advice exceptions”, to refer to information withheld under the following FOISA exemptions –

There were 38 cases where a review was requested of an initial request where one of the exemptions listed above was applied.

We do not hold the information that you have requested for EIR reviews because, as previously explained, there is no “free and frank” exception under the EIRs. This is a formal notification under section 17(1) of FOISA that the information is not held for EIRs reviews.

Question 5

The questions following are answered on the same understanding of the exemptions covered by you reference to “free and frank advice exceptions” as noted previously.

a. There were 38 review responses issued where the application of a “free and frank” exemption was considered.
i. 38
ii. 15 of the review responses overturned at least partially the application of one of the exemptions that we have understood to be included in your definition of “free and frank advice exemptions”.
iii. Three of the review responses that consider the application of “free and frank exemptions” have been appealed to the Scottish Information Commissioner.

Question 6

Links to the published review responses that have disclosed information that was initially withheld under exemptions at sections 29(1)(a), 30(b)(i), 30(b)(ii) or 30(c) are listed below –

Where applicable, copies of the responses are attached with information highlighted in yellow that was withheld at request stage under a “free & frank advice exemption”.

One review response is not published, and a copy is enclosed with this response. All of the information disclosed in the review response was initially withheld under 30(b)(i) or 30(b)(ii).

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information within this response because it is personal data of a third party, i.e. names and contact details of the requester, 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.

Question 7

In the time period covered by your request we have received notification that 24 responses, made under either FOISA or the EIRs, have been appealed to OSIC. Please note that this number is notifications from OSIC within the time period of your request, some of the earlier appeal notifications within the period will be in relation to review responses that were issued before 1 September 2024.

Of the review responses that were issued within the time period covered by your request, 15 of these (including both FOISA and EIR responses) have been appealed to the Scottish Information Commissioner.

a. Of those 24 notifications, four consider the application of one of the “free and frank advice” exemptions listed in previous questions. Of the 15 review responses issued within the time period covered by your request that have been appealed, three consider the application of “free and frank advice exemptions”.

Question 8

The Scottish Information Commissioner publishes all of his decisions on his website - Decisions | Scottish Information Commissioner. You can filter decisions by exemption and date, and then use the ‘Search’ box to filter by public authority.

Since 1 September 2024, the Scottish Information Commissioner has issued 25 decisions on appeals relating to cases handled by Scottish Ministers. These are decisions on both FOISA and EIRs cases. Of those decisions, 10 considered the “free and frank exemptions” –

Of those 10 decisions, eight found partially in favour of the Scottish Ministers, i.e. that information had in part been correctly withheld under the exemptions listed above but that some had been incorrectly withheld and so should be disclosed. The remaining two decisions found wholly in favour of the applicant and required the disclosure of information. One of these decisions, 065/2025, is the subject of an appeal to the Court of Session.

As set out in previous answers, this information is not held in relation to decisions made on EIRs cases because there is no exception under the EIRs for “free and frank advice”. Therefore, this is a formal notice under section 17(1) of FOISA that this information is not held.

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 202500461547 - Information released - Annex

File type: PDF
File size: 6.8 MB

Contact

Please quote the FOI reference
Central Correspondence Unit
Email: contactus@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

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