Justice Division risk registers: FOI release

Information requested

I would like to request the following information under the Freedom of Information (Scotland) Act 2002:

1. The current Community Justice Division Risk Register.
2. The current Criminal Justice Division Risk Register.
3. The current CLLS (Community Learning & Legal Services) Division Risk Register. (This is now called Civil Law & Legal Systems Team)

For each of the above, please provide the full and final version of the risk register currently in use, including all risk descriptions, scores, mitigation's, owners and RAG ratings.

If any information is withheld, please cite the specific FOISA exemption(s) applied and provide the public-interest test where relevant.

Response

I enclose a copy of some of the information you requested, in electronic format.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested. This is because of exemptions under sections 28 (relations within the UK), 29(1)(a) (formulation or development of government policy), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), 30(c) (effective conduct of public affairs), 36 (legal advice), and 38(1)(b) (personal information), of FOISA apply to that information.

The reasons why these exemptions apply are explained in the Annex to this letter.

• Civil Law and Legal Systems Divisional Risk Register
• Criminal Justice Division Risk Register
• Community Justice Division Risk Register

Annex

Exemptions apply, not subject to the public interest test

Section 38(1)(b) – applicant has asked for personal data of a third party
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, ie names of individuals below the seniority of Senior Civil Servants, 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.

Exemptions apply, subject to the public interest test

Section 28(1) – relations within the UK
An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government by revealing internal discussions about the other administration’s policies. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. Disclosure of this information will mean that the UK Government is likely to be more reluctant to communicate as frequently and openly with the Scottish Government in 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 maintaining close working relationships between, and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informated about matters of mutual interest, such as consistent policy and legislative development. There is no public interest in disclosing information when that will damage relationships and disrupt future communications as that may impact on the effectiveness of future policy development and implementation work.

Section 29(1)(a) - formulation or development of government policy
An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on national security, counter terrorism, serious and organised crime, international justice cooperation and veterans. 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 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 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 national security, counter terrorism, serious and organised crime, international justice cooperation and veterans 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.

Section 30(b)(i) - Free and frank provision of advice
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 and other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on risk will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to sensitive issues such as national security, counter terrorism, serious and organised crime, international justice cooperation and veterans. 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 and other officials, as part of the process of exploring and refining the Government’s policy position on national security, counter terrorism, serious and organised crime, international justice cooperation and veterans, until the Government as a whole can adopt a policy that is sound and likely to be effective. 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 policy making process, which would not be in the public interest.

Section 30(b)(ii) - Free and frank exchange of views for the purposes of deliberation
An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on risk will substantially inhibit such discussions in the future, particularly because these discussions relate to sensitive issues such as national security, counter terrorism, serious and organised crime, international justice cooperation and veterans. 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 to explore and refine the Government’s policy position on national security, counter terrorism, serious and organised crime, international justice cooperation and veterans, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable 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 and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Section 30 (c) – Substantial prejudice to the effective conduct of public affairs
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to the majority of the information requested. Disclosing this information would substantially prejudice the statutorily independent work of the Scottish COVID-19 Inquiry by revealing information on matters relating to the activity, operation and approach (both present and in future activity) of the Inquiry. This in turn risks damaging public confidence in the independence of the inquiry process, and prejudicing the integrity of its investigations. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

Section 36 Legal professional privilege
Section 36 of the Freedom of Information (Scotland) Act 2002 (FOISA) contains two separate exemptions. Information may be withheld if: (i) it is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings (for example, if information is “legal privileged”) (section 36(1)); or (ii) the information was obtained by a Scottish public authority and disclosing it would constitute an actionable breach of confidence (section 36(2)). Section 36(2) incorporates the Scots law of confidence into FOISA.

Disclosing this information would also substantially prejudice the statutorily independent work of the respective policy areas across Civil Law and Legal Systems team, Criminal Justice and Community Justice by revealing information which could potentially compromise that sponsorship and hinder the development of policies. This would constitute substantial prejudice to decision making and the effective conduct of public affairs in terms of the exemption. This exemption is subject to the ‘public interest test’.

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 202500494457 - Information released - Risk Registers

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