Disclosure Scotland's response to the UK Supreme Court judgement: FOI Review

Information requested

Original Request 202500477264
1. Legal and Policy Review

• Any internal communications, legal advice, briefings, minutes, or emails that reference the implications of the Supreme Court ruling for Disclosure Scotland’s policies, equality duties, safeguarding procedures, or communications.
• Any Equality Impact Assessments (EQIAs) amended or initiated in response to this judgment.

2. Gender vs Sex in Safeguarding & Vetting

• Guidance issued to staff or partners that defines or references “sex”, “gender identity”,“transgender”, or “non-binary” in the context of risk assessment, safeguarding, or PVG Scheme vetting.
• Any changes to PVG scheme eligibility, vetting criteria, or terminology in light of the Supreme Court ruling.

3. Third-Sector Influence & Payments
A list of all payments made since 1 January 2022 to any of the following:

• Stonewall Scotland or Stonewall UK
• LGBT Youth Scotland
• Equality Network
• Scottish Trans
• Or any other third-sector body contracted to deliver diversity, equality, inclusion, or safeguarding advice.

Please include:

• Supplier name,
• Date and amount,
• Description of services delivered or purpose of the payment.

4. External Audits, Benchmarking & Training

• Any participation in Stonewall’s Diversity Champions programme or other third-party equality benchmarking since 2022.
• Training materials delivered to staff or senior leaders on sex, gender identity, or inclusion, particularly where the concept of “sex” may have been conflated with gender identity.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA). Please accept our apologies for the delay in response to:

Internal review of Disclosure Scotland's handling of my FOI request 'FOI Request – Policy Review, Stonewall Links, and Equality Act Compliance Following UK Supreme Court Ruling'.

This response will deal only with the review of your original request. Your additional questions will be dealt with in the separate response 202500482697.

1. Legal and Policy Review

• Any internal communications, legal advice, briefings, minutes, or emails that reference the implications of the Supreme Court ruling for Disclosure Scotland’s policies, equality duties, safeguarding procedures, or communications.
• Any Equality Impact Assessments (EQIAs) amended or initiated in response to this judgment.

2. Gender vs Sex in Safeguarding & Vetting

• Guidance issued to staff or partners that defines or references “sex”, “gender identity”,“transgender”, or “non-binary” in the context of risk assessment, safeguarding, or PVG Scheme vetting.
• Any changes to PVG scheme eligibility, vetting criteria, or terminology in light of the Supreme Court ruling.

3. Third-Sector Influence & Payments
A list of all payments made since 1 January 2022 to any of the following:

• Stonewall Scotland or Stonewall UK
• LGBT Youth Scotland
• Equality Network
• Scottish Trans
• Or any other third-sector body contracted to deliver diversity, equality, inclusion, or safeguarding advice.

Please include:

• Supplier name,
• Date and amount,
• Description of services delivered or purpose of the payment.

4. External Audits, Benchmarking & Training

• Any participation in Stonewall’s Diversity Champions programme or other third-party equality benchmarking since 2022.
• Training materials delivered to staff or senior leaders on sex, gender identity, or inclusion, particularly where the concept of “sex” may have been conflated with gender identity.

Response to your review

I have concluded that the original decision should be confirmed with modifications, with some additional information provided to you and our exemptions set out for you.
We apologise that in our original response we exempted documents in full and I can confirm this was not meant to mislead. In this response we are providing you the documents with the exemptions broken down and we hope this provides you the detail you are looking for. In the original response you had been provided Document 1 and 20.
Upon review, we have now released some further information, some of which is in the public domain including within Document 2, 14, 17 and 18.
You have stated you are dissatisfied with the exemptions applied in our response to you. We have reviewed the exemptions and I have outlined each with our considerations and any modifications below:

1. Exemption under section 29(1) - formulation or development of government policy

In our original response, we applied this exemption to document number 2. As part of this review, the application of this exemption and the associated public interest test have been reconsidered. As a result, a version of this document has now been released with line-by-line redaction.

This exemption still applies to part of the document as it relates to the formulation or development of government policy in which officials are still considering options which will subsequently determine what should be translated into political action and/or legislation and when.
This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, it has considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. It is concluded that, on balance, the public interest lies in favour of upholding the exemption. It is recognised that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform publicdebate. However, there is a greater public interest in withholding information on matters in which policy has not yet been settled.

1. Exemption under section 30(b)(i) of FOISA – Free and frank exchange of advice.

In our original response, we applied this exemption to documents 9, 10, 14, 16, 17 and 18. As part of this review, the application of this exemption and the associated public interest test have been reconsidered. As a result, redacted versions documents 14, 17 and 18 have now been released, as we have determined that some of the information is within the public domain.

Documents 9, 10 and 16 have continued to be withheld, with redacted versions released. This exemption still 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 before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on released documents 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, it has considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. It is concluded that, on balance, the public interest lies in favour of upholding the exemption. It is recognised 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.

1. Exemption under section 30(b)(ii) of FOISA – Free and frank exchange of views.

In our original response, we applied this exemption to documents 3, 4, 6, 7, 8, 9, 11, 14 and 15, As part of this review, the application of this exemption and the associated public interest test have been reconsidered. As a result, a redacted version of document 14 has been released. The rationale for this has been set out above.

This exemption still applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views. This exemption recognises the need for officials to have a private space within which to exchange views on matters of sensitivity outside the public view. Disclosing the contents of free and frank exchange of views on released documents will substantially inhibit the exchange of views in future.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, it has considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. It is concluded that, on balance, the public interest lies in favour of upholding the exemption. It is recognised 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 exchange views.

1. Exemption under section 30(c) of FOISA – the effective conduct of public affairs.

In our original response, we did not apply this exemption, however upon review, we have applied it in part to documents 2 and 4. This is because we consider that disclosure would, or would be likely to, cause substantial prejudice to the effective conduct of public affairs.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, it has considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. It is concluded that, on balance, the public interest lies in favour of upholding the exemption. It is recognised 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 officials to carry out their roles, particularly relating to sensitive matters, without inhibition.
Redacted versions of documents 2 and 4 have been released.

1. Section 36(1) – claim to confidentiality of communications

In our original response, we applied this exemption to documents 5, 12, 13, 15 and 19. As part of this review, the application of this exemption has been reconsidered. We still consider that this exemption applies to documents 5, 12, 13 and 19. We do not consider that it applies to document 15, as we have determined that this is entirely out of scope.
Redacted versions of documents 5, 12, 13 and 19 have been released.

1. Legal and Policy Review

• Any internal communications, legal advice, briefings, minutes, or emails that reference the implications of the Supreme Court ruling for Disclosure Scotland’s policies, equality duties, safeguarding procedures, or communications.

In our original response we have provided some of the information you have requested. In this review response we have provided it to you in a different format so the exemptions are clearly set out for you. In following this approach we have provided further content in the enclosed attachment.

• Any Equality Impact Assessments (EQIAs) amended or initiated in response to this judgment.

As in our original response Disclosure Scotland holds no such reports. Disclosure Scotland has carried out Equality Impact Assessments in other areas of policy however there has not been a requirement within the scope of your request.

This is a formal notice under section 17(1) of FOISA that Disclosure Scotland does not have the specific information you have requested.

2. Gender vs Sex in Safeguarding & Vetting

• Guidance issued to staff or partners that defines or references “sex”, “gender identity”, “transgender”, or “non-binary” in the context of risk assessment, safeguarding, or PVG Scheme vetting.

As advised in our original response we do have publicly available guidance (Information for transgender and non-binary disclosure applicants - mygov.scot) for applicants and staff to assist with making an application however eligibility for the PVG Scheme is not determined by sex, sex is not used for vetting purposes in matching individuals to their record and Disclosure Scotland does not provide guidance that relates to the definition of sex under the Equality Act 2010.

• Any changes to PVG scheme eligibility, vetting criteria, or terminology in light of the Supreme Court ruling.

I note in your review request that some further information has been requested. You will receive a separate response on this.

3. Third-Sector Influence & Payments
A list of all payments made since 1 January 2022 to any of the following:

• Stonewall Scotland or Stonewall UK LGBT Youth Scotland
• Equality Network Scottish Trans
• Or any other third-sector body contracted to deliver diversity, equality, inclusion, or safeguarding advice.

Please include:

• Supplier name,
• Date and amount,
• Description of services delivered or purpose of the payment.

As in our original response Disclosure Scotland has made no payments to the listed organisations in the specified timeframe. Therefore, this is a formal notice under section 17(1) of FOISA that Disclosure Scotland does not have the specific information you have requested. I apologies that this exemption was not formally applied at the time of your request.

4. External Audits, Benchmarking & Training

• Any participation in Stonewall’s Diversity Champions programme or other third-party equality benchmarking since 2022.

Disclosure Scotland has not participated in Stonewall’s Diversity Champions programme or other third-party equality benchmarking since 2022.

• Training materials delivered to staff or senior leaders on sex, gender identity, or inclusion, particularly where the concept of “sex” may have been conflated with gender identity.

As in the original response Disclosure Scotland holds no such records or materials.
This is a formal notice under section 17(1) of FOISA that Disclosure Scotland does not have the specific information you have requested.

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 202500481644 - Information Released - Annex

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