Communications related to Scottish Information Commissioner decision notice: FOI release

Information requested

"For thoroughness, and to eliminate any need for any investigation of the Authority under section 65 of FOISA, the Authority was invited to assist the Commissioner by requesting a voluntary affidavit from the named Special Adviser. It was requested that this clarify the named Special Adviser’s role in the redaction process. This invitation to provide an affidavit was refused and instead a signed statement was provided. The Commissioner draws no negative inference from non-compliance with this request."

1. I request all communications (emails, whatsapps, minutes, etc everything) within the Scottish Government regarding the above paragraph.

2. I request the signed statement provided to the SIC as mentioned above.

Response

I have considered the terms of your request and can confirm that some information can be released to you, please see the attached copy. While our aim is to provide information whenever possible, in this instance we are unable to provide the remainder of the information you have requested as a number of exemptions apply, which I will explain under each heading below.

30(b)(i) of FOISA

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 for officials to have a private space within which to provide free and frank advice to Ministers. Disclosing the content of free and frank advice to ministers will substantially inhibit the provision of such advice in the future, particularly because officials need this space to be protected to allow them to provide candid advice on handling and if this were to be disclosed, it would diminish future advice provided to Ministers.

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 officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s position on an FOI appeal under investigation by the Scottish Information Commissioner. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that effective 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.

30(c) of FOISA

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for officials to be able to discuss and refine a draft before coming to a settled position. Disclosing this information would significantly harm the Government’s ability to carry out many aspects of its work if all of the discussions that officials have to refine a draft are disclosed, and this could adversely affect our ability to gather all of the evidence we need to make fully informed decisions 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 Ministers and officials a private space within which officials can discuss and formulate a response as part of the process of exploring and refining drafts. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, thus protecting the drafting process undertaken by officials within SG. Disclosure of this information would undermine the quality of the decision making process, which would not be in the public interest.

36(1) of FOISA

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is 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 and transparent 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

29(1)(d) of FOISA

An exemption under section 29(1)(d) of FOISA (Ministerial private office) applies to some of the information requested because it relates to the operation of any Ministerial private office.

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, to ensure private offices operate efficiently and to inform public debate. However, there is a greater public interest in allowing a Minister’s private office to manage the First Minister’s inbox and engage with the First Minister on sensitive information to deliver decisions to officials when approval is required. This private space also allows for options around the use of time and ministerial commitments made to be properly considered and balanced in order to enable the effective operation of private office.

Section 38(1)(a) of FOISA

An exemption under section 38(1)(a) of FOISA (personal information) applies to some of the information requested because it is personal information of which you are the data subject, and so it is subject to the General Data Protection Regulation and the Data Protection Act 2018. This is limited to the mention of your name only.

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 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 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 202500470557 - Information Released - Documentation

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