Correspondence sent to Cabinet Secretary for Justice and Minister for Victims and Community Safety regarding prisons: FOI release

Information requested

Internal briefings, submissions, or update notes sent to the Cabinet Secretary for Justice, Minister for Victims and Community Safety, or DG Justice between Sept 1 to Oct 1, 2025, which warn about:

• unsafe or deteriorating prison conditions
• prisons assessed as “end-of-life”
• major maintenance failures
• the impact of overcrowding on estate safety
• inability to modernise due to capital constraints

Response

I enclose a copy of some of the information you requested in Annex A. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested due to the following exemptions:

Section 30(b) of FOISA (free and frank provision of advice or exchange of views) applies to some this information. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice or 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. 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 exchange views and provide full and frank advice, as part of the process of exploring and refining the Government’s position until the Government as a whole can adopt a decision that is sound and likely to be effective.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some the information requested because it is legal advice and disclosure would breach legal professional privilege. 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 release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

Section 38(1)(b) of FOISA (personal information) applies to some of this information because it is personal data of a third party, i.e. names and contact details of individuals, 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.

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 202500495798 - Information Released- Annex A

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