Meetings involving the Constitutional Futures Division and Scottish Government Ministers: FOI Review

Information requested

Original request 202500461036

This is a follow up request to a previous FOI response. Your ref: 202500455797

The above referenced FOI response provided a list of meetings involving CFD civil servants and Scottish Government Ministers.

For each of the listed meetings, please provide all briefing materials prepared ahead of the meeting, the agenda for the meeting, and any notes/minutes recording what was discussed at the meeting.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for a review of FOI 202500461036.

Your Request

You asked for a review of FOI 202500461036, stating ‘the exemptions justifying the redactions under sections 29 and 30 of FOISA have been misapplied. Given the profoundly serious consequences of Scottish independence, and the fact that the Scottish Government remains committed to achieving it, the public interest in withholding the information plainly does not outweigh the public interest in disclosing it.’

Outcome of the review

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

As detailed in our original response, while our aim is to provide information whenever possible, in this instance I have concluded with the decision of the original case handler, that we are unable to provide all of the information you have requested because exemptions under sections 29(1)(a), 30(b)(i), 30(b)(ii), 38(i)(b) and 30(c) of FOISA apply to that information.

In carrying out the review I have reconsidered the use of exemptions, and particularly the application of the public interest test on section 29 and 30, as highlighted in your review request.

In relation to exemption Section 29(1)(a) – Formulation or Development of Government Policy, it is my view that materials were correctly withheld as they relate to the formulation of the Scottish Government’s policy on the Building a New Scotland prospectus series.

There is some public interest in releasing the documents as it would contribute to an open and transparent government and could help inform public debate. However, there is a greater public interest in maintaining high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. The withheld materials were part of preliminary discussions when private space for Ministers and officials to discuss matters is essential to ensure implementation and development of policies and decisions are properly considered.

As a result, I concur with the decision in the original response that, on balance, the public interest lies in favour of upholding the exemption.

In relation to sections 30(b)(i) – Free and Frank Provision of Advice and 30(b)(ii) – Free and Frank Exchange of Views were correctly withheld (with some exceptions noted below) as they relate to draft timings and advice on the Building a New Scotland prospectus series.

These exemptions are also subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption (with some exceptions noted below). I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate on the Scottish Government’s plans for independence. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers as part of the process of exploring and refining the Government’s policy position. 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 decision making process, which would not be in the public interest.

After applying the public interest test for 30(b)(ii) – Free and Frank Exchange of Views, I did identify some additional material for release. These additional materials for release relate to Items 3, 6 and 13 of the original request, and are highlighted in the attachment, Annex A of this letter.

In relation to Section 30(c) – Prejudice to the Effective Conduct of Public Affairs, I agree with its application and use in the original response. The exemption was applied because releasing previous drafts of Scottish Government publications and discussions about drafting, which do not reflect final decisions taken, would result in inaccurate information on the Scottish Government’s proposals for an independent Scotland being published, thereby undermining the Scottish Government’s ability to effectively and accurately engage and communicate with the public.

Furthermore, it is likely that the materials’ disclosure would impair the Scottish Government’s ability to take forward its work on policy development. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

When reviewing the public interest test for this exemption. As in the previous case, there would be some public interest in disclosing the materials, namely as part of open, transparent and accountable government, and to inform public debate. However, this must be considered alongside the 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. Having inaccurate information released into the public domain, which doesn’t reflect final decisions taken risks the proposals being prejudiced by inaccurate information, on a matter of significant political relevance and controversy.

As a result, I conclude with the original response that, on balance, the public interest lies in favour of upholding the exemption.

Further information on the application of these exemptions is contained in our previous correspondence.

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 202500470324 - Information released - Annex A

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