Mothballing of nurseries and schools review information: FOI Review

Information requested

Original Request: 202500471247

• On what date was the review of mothballing guidance confirmed? (eg on which date was it decided to go ahead with the review, not on which date was the review first mentioned in parliament)
• On what date did work on the review of mothballing guidance commence?
• How many staff are currently allocated to the review of mothballing guidance?
• Have any meetings been held as part of the review of mothballing guidance?
• If so, please provide a list of dates, attendees, meeting types (in person or online), and minutes for each meeting (if no minutes exist for any meetings please state this clearly and explicitly)
• Have any other organisations been contacted as part of the review of mothballing guidance?
• If so, please provide the name of each organisation, the date on which it was contacted, and the method of communication used.
• Does the government have any information on when it plans or hopes to complete the review?
• This could either be a specific date, a month, or a broader period (for example, if the work is to be completed before the end of the current parliament, then this would fall into the latter category). If so, please provide this.”

Response

I have now completed my review of the Scottish Government’s response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA), which asked for the following information in relation to the Scottish Government’s review of guidance on the mothballing of schools:

• On what date was the review of mothballing guidance confirmed? (eg on which date was it decided to go ahead with the review, not on which date was the review first mentioned in parliament)
• On what date did work on the review of mothballing guidance commence?
• How many staff are currently allocated to the review of mothballing guidance?
• Have any meetings been held as part of the review of mothballing guidance?
• If so, please provide a list of dates, attendees, meeting types (in person or online), and minutes for each meeting (if no minutes exist for any meetings please state this clearly and explicitly)
• Have any other organisations been contacted as part of the review of mothballing guidance?
• If so, please provide the name of each organisation, the date on which it was contacted, and the method of communication used.
• Does the government have any information on when it plans or hopes to complete the review?
• This could either be a specific date, a month, or a broader period (for example, if the work is to be completed before the end of the current parliament, then this would fall into the latter category). If so, please provide this.”

In requesting a review of the Scottish Government’s response, you have highlighted the following points:

• The government has withheld information using exemptions 29(1)(a), 30(b)(i), 36(1). In each case, a vague and cursory explanation is provided that makes no serious attempt to provide a specific explanation as to why the exemptions are necessary in these specific circumstances, instead simply inserting a reference to the general topic to larger paragraphs that I have seen hundreds of time before. I believe that this shows that the government is applying the exemptions in a way that is contrary to advice provided by the Scottish Information Commissioner, much of it ultimately depending on arguing for a very broad and generic "chilling effect". I would like every instance of these exemptions re-examined, and then the application of the public interest test for each individual instance re-examined.
• The response also makes clear that at least one entire document is being withheld using one of the above exemptions. This is not appropriate or acceptable, as the government is well aware. If the government wishes to attempt to withhold specific information within a document using an exemption it can do so, but it cannot simply withhold the whole document on the spurious basis that an exemption applies somewhere within in. There is no conceivable way that an entire meeting minute document (including basic information like the date on which it was taken, or the nameable officials involved) can be covered by the section 30(b)(i) exemption. Please release this document.
• Please also check that all relevant documents have been included, as this doesn't appear to be the case.

​​​​​​​Review conclusions

​​​​​​​I have concluded that in relation to the information provided in answer to your questions and the exemptions applied to documents MA01, MA02 and MA03, the original decision should be confirmed, with modification made in relation to the application of the exemption under Section 30(b)(i) in relation to some of the information in document MA01.

​​​​​​​I have also concluded that a different decision should be substituted in relation to withholding document MA04. The information within scope of your request in document MA04 is being released with some information withheld under Section 38(1)(b).

​​​​​​​I have considered the searches undertaken to locate information within scope of your original request, the application of exemptions to the documents considered within scope and the information provided in response to your questions. I have concluded that adequate and proportionate searches were undertaken to locate information within scope of your request and the application of exemptions under Sections 29(1)(a), 30(b)(i), 36(1) and 38(1)(b) were appropriately applied to information within documents MA02 and MA03. I have set out my conclusion in relation to documents MA01 and MA04 below.

​​​​​​​MA01

​​​​​​​I have concluded that an exemption under Section 30(b)(i) (the free and frank provision of advice) was incorrectly applied to some of the information within scope of your original request as I consider the balance of public interest to lie in favour of disclosure. I have further concluded that on balance, the public interest lies in favour of upholding the remaining application of Section 30(b)(i) exemptions within this document. We recognise that there is some public interest in release because the issue of the mothballing schools and nurseries is of interest to parents, children and young people, communities

​​​​​​​and local authorities. However, this is outweighed by the public interest in providing Ministers and Scottish Government officials space to provide advice on a complex issue where disclosure is likely to substantially inhibit provision of such advice. I have therefore enclosed a revised version of MA01 with this response that includes the additional information released.

​​​​​​​MA04

​​​​​​​I have concluded that the application of exemption Section 30(b)(i) (the free and frank provision of advice) to this entire document was incorrect, does not meet our requirement under FOISA and the Scottish Government was wrong to do so. Please accept my apologies on behalf of the Scottish Government for the incorrect handling of this information. This matter has been raised with the appropriate team to avoid recurrence. I have therefore enclosed a copy of MA04 with this response. Please note that information considered outwith the scope of your request has been withheld and that an exemption under Section 38(1)(b) of FOISA applies to some of the information you have requested where it includes the personal data of Scottish Government employees.

​​​​​​​You also raised your concerns regarding the explanations provided for the exemptions applied to the information withheld under Sections 29(1)(a), 30(b)(i) 36(1). I have concluded that the explanations given for the application of exemptions under Sections 29(1)(a) and 36(1) were sufficient. However, the explanation given for the application of exemptions under Section 30(b)(i) did not sufficiently explain its application to the entire document MA04. Please accept my apologies on behalf of the Scottish Government for this. This matter has also been raised with the appropriate team to avoid recurrence.​​​​​​​

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 202500477128 - Information Released - Annex

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