Meetings involving Constitutional Futures Division civil servants and Scottish Government ministers: FOI release

Information requested

This is a follow up request to a previous FOI response. Your ref: 202500461036

The above referenced FOI response provided an item with the title: "Cabinet Secretary for Transport, Net Zero and Just Transition, Cabinet Secretary for Wellbeing Economy, Fair Work and Energy and Minister for Independence: Discussion on [Redacted – S.29(1)(a)] ESJTP and the BANS Net Zero paper 10.01.2024– File note"

That item includes the following remark:

"Advice note will be recirculated with a note of the discussion to allow Ministers to further respond."

Please provide the above mentioned advice note.

Response

Some of the information you have requested is enclosed with this letter. Exemptions under S.30(b)(i), S.30(b)(ii), S.30(c) and S.38(i)(b) of FOISA apply to some of the information requested. The reasons why these exemptions apply are explained in the Annex of this letter.

Annex

Reasons for not providing information

Section 30(b)(i) (free and frank provision of advice)

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.

This exemption recognises the need 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 free and frank advice will substantially inhibit the provision of such advice in the future.

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 allowing a private space within which Scottish Government staff can provide full and frank advice to Ministers until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

S.30(b)(ii) – (Free and frank exchange of views for the purposes of deliberation)

An exemption under section 30(b)(ii) of FOISA (Free and frank exchange of views for the purposes of deliberation) applies to some of the information requested. This exemption 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 issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public. This would significantly harm the Scottish Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence needed to make fully informed policies/decisions.

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 allowing Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s policy position until the Government as a whole can adopt a policy that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest. There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual’s contribution was released against their wishes

Section 30(c) (Prejudice to the Effective Conduct of Public Affairs)

An exemption under section 30(c) of FOISA (Prejudice to the Effective Conduct of Public Affairs) applies to some of the information requested. The reason why this exemption applies is because releasing draft plans for and content of Scottish Government publications, which do not reflect final decisions taken, would result in inaccurate information on the Scottish

Government’s proposals for an independent Scotland, and the Energy Strategy and Just Transition Plan being published, thereby undermining the Scottish Government’s ability to effectively and accurately engage and communicate with the public.

This in turn would be likely to impair the Government’s ability to take forward its work on policy development for an independent Scotland, and the Energy Strategy and Just Transition Plan. 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, and to inform public debate. However, there is a greater public interest in enabling the Scottish Government to effectively and accurately engage and communicate with the public on its proposals for an independent Scotland, and the Energy Strategy and Just Transition Plan, without the risk of these proposals being prejudiced by inaccurate information, which doesn’t reflect final decisions taken, being released while the Scottish Government’s work was still under development.

Section 38(i)(b) - Personal Information

An exemption under section s.38(1)(b) of FOISA (Personal Information) applies to some of the information you have requested because it is the personal data of a third party, i.e. names and contact details of individuals (including civil servants below SCS), 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.

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 202500465524 - Information Released - Annex

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