Information relating to Prison Population Assurance Group: FOI Review

Information requested

Original request 202500491124

1. Copies of the Group’s risk registers for the past two years (from November 2023 to the present).

2. Copies of the minutes of all Prison Population Assurance Group meetings held during the same two-year period.

3. Copies of the agendas for all meetings of the Prison Population Assurance Group during the same period.

4. The names and file paths of any ERDM folders used by the policy team or officials responsible for managing the Group that store material relevant to its operation (e.g. meeting papers, correspondence, reports, or analysis).

Response

Further to my letter of 9 December 2025, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) regarding materials relating to the Prison Population Assurance Group (case reference 202500491124).

I have been asked to re-examine your request, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or a fresh decision be substituted. I can confirm that I was not involved in the handling or decision-making around the original response. I have considered this case again, and have conducted a comprehensive review of the response, and the reasons behind withholding the requested information.

I have concluded that the original decision should be confirmed, with modifications.

Section 14(1) - Vexatious requests

Under section 21(8)(a) of FOISA a public authority is not obliged to comply with a review request if it is vexatious. The Scottish Information Commissioner’s guidance on vexatious requests says that “The following factors will be relevant to a finding that a request (which may be the latest in a series of requests or other related correspondence) is vexatious:

1. it would impose a significant burden on the public authority;

2. it does not have a serious purpose or value;

3. it is designed to cause disruption or annoyance to the public authority;

4. it has the effect of harassing the public authority;

5. it would otherwise, in the opinion of a reasonable person, be considered to be manifestly unreasonable or disproportionate.”.

As noted in our response of 25 November, we consider that your request regarding the names and file paths of ERDM folders does not have a serious purpose or value.

Under section 21(8)(b) of FOISA a public authority is not obliged to comply with a review request if it refused the original request under section 14 because it was vexatious. As your original request was refused on that basis and your review request does not provide grounds to suggest that our decision was incorrect, particularly in relation to point 2 above, we consider that we are not obliged to comply with this part of your review request.

Section 29(1)(a) - Formulation or development of government policy

 I concur with the original decision that 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 formulation and development of the Scottish Government’s policy on the management of Scotland’s prison population.

However, in applying the ‘public interest test’ I consider that some of the information previously withheld should be disclosed. Specifically, this applies to information that has already been disclosed elsewhere in our response, is already in the public domain, or where disclosure does not inhibit the formulation of policy. Where this is not the case, and information relates to the formulation or development of policy, the exemption has been upheld. Although there is a public interest in disclosing information as part of open, transparent and accountable government, 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 managing the prison population 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.

As noted above, we are now releasing some information that was previously withheld from disclosure. Please find attached updated copies of the Prison Population Assurance Group’s Action log, Tracker and Agendas.

Section 30(b)(i) - Free and frank advice

I have reassessed the information withheld under Section 30(b)(i) of FOISA (free and frank provision of advice) and have concluded that this exemption should be upheld.

This exemption applies to some of the information requested where 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 other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the management of the prison population will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken, and these discussions relate to a sensitive or controversial issue such as the release of prisoners.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 other officials, as part of the process of exploring and refining the Government’s position on the management of the prison population, until the Government as a whole can adopt a decision 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 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.

Section 30(c) – substantial prejudice to the effective conduct of public affairs

Upon reflection, I note that this exemption was not applied correctly at the request stage as our response did not explicitly specify that it was part (c) of section 30 that was being applied. However, I am content that the information in question should have been withheld from disclosure under section 30(c) of FOISA and that the public interest test was appropriately applied.

As part of this review, the enclosed copy of the Prison Population Assurance Group’s Tracker sets out the single instance where an exemption under section 30(c) has been used.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 protecting the process of introducing and implementing effective legislation and ensuring that the Scottish Government is able conduct this aspect of its business effectively.

Other considerations

In your review request, you ask for justification as to why the Prison Population Assurance Group does not keep a risk register or minutes. In order to meet our obligation to provide advice and assistance under section 15 of FOISA, we advised you in our response of 25 November that risks are recorded through the group’s Tracker document. Furthermore, we advised that no minutes are held but actions from meetings are instead recorded in the Action log, hence their inclusion in the scope of your request.

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 202500495535 - Information Released - Annex

File type

PDF

File size

396.5 kB