Correspondence regarding the Financial Resolution for the Schools (Residential Outdoor Education) (Scotland) Bill: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002.
Information requested
"...copies of all ministerial submissions, briefings, and advice prepared for the Minister for Children, the Cabinet Secretary for Education & Skills, and/or the Cabinet Secretary for Finance regarding the financial resolution for the Schools (Residential Outdoor Education) (Scotland) Bill between 1 August and 30 September 2025.
"This should include any cost estimates, funding options, and recommendations to ministers, but not routine emails, diary invites, or drafts."
Response
I enclose a copy of some of the information you requested. Please note that Annex A consists of email documents whilst Annex B comprises separate attachments referred to in those emails.
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections s.29(1)(a), s.29(1)(b), s.29(1)(d), s.30(b)(i), s.30(b)(ii), s.36 and s.38(1)(b) of FOISA apply to that information. The reasons why those exemptions apply are explained below.
Under s.29(1)(a) of FOISA, information which relates to the formulation or development of government policy is exempt from release. The Commissioner has interpreted “formulation or development of policy” as the consideration or development of options and priorities for Scottish Ministers, who will subsequently determine which of these 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, 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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to develop and consider all available options and to debate those rigorously, to fully understand their possible implications.
Their candour in doing so will be affected by their assessment of whether the discussions on the proposed Schools (Residential Outdoor Education) (Scotland) Bill will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.
Under s.29(1)(b) of FOISA, information relating to Ministerial communications is exempt from release. This includes communications relating to proceedings of the Scottish Cabinet (or of any committee of that Cabinet). “Minister” includes junior Scottish ministers as well as members of the Scottish Government. The exemption covers information “relating to” Ministerial communications, so it covers more than just direct communications between Ministers. It could also cover things like records of discussions between Ministers, drafts of letters, whether or not the letters were finalised or sent.
Communications between private secretaries, when corresponding on their respective Minister’s behalf, are also covered by 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 some public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is greater public interest in maintaining a private space for Ministers to have robust, uninhibited discussions about key issues in order to develop effective policy. Should Ministers fear that communications may be disclosed prematurely, it could inhibit honest debate and discussion.
Under 29(1)(d) of FOISA, information relating to the operation of Ministerial Private Office is exempt from release.
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. However, there is a greater public interest in preserving the efficient and effective operation of a Ministerial private office within which Ministers can investigate and conduct research into all relevant subject matters to allow them to properly consider all information, evidence and options so that good decisions can be taken.
Under s.30(b)(i) of FOISA, information is exempt from release if it would or would be likely to, inhibit substantially the free and frank provision of advice. Although the exemption will often be applied to advice or to an exchange of views, it can apply to other types of information.
Under s.30(b)(ii) of FOISA, information is exempt from release if it would or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. Although the exemption will often be applied to advice or to an exchange of views, it can apply to other types of information. This exemption recognises the need to allow Ministers some private space for discussion.
The s.30(b)(i) and s.30(b)(ii) exemptions are 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 maintaining the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can reach a final decision. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy-/decision- making process.
Under s.36(1) of FOISA, information is exempt from release if it is information of which a claim to confidentiality of communications could be maintained in legal proceedings (for example if information is "legal privileged").
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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in preserving legal professional privilege. There is a strong well- established public interest in maintaining the confidentiality of legal advice. It ensures that public authorities can seek and receive candid legal advice without fear of premature disclosure.
Under 38(1)(b) of FOISA, information is exempt from release if it is the personal data of a third party. Personal data is exempt from disclosure if disclosure would contravene any of the data protection principles in Article 5(1) of the UK GDPR and in section 34(1) of the DPA 2018. The exemption is absolute, so it is not subject to the public interest test. In line with the wording of your request and for your interest, I have made some interpretations on how to best answer this request.
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