Scottish Government and NHS Lothian and/or NHS Greater Glasgow and Clyde regarding the new NHS East and NHS West structure: FOI Review

Information requested

Original Request 202500497219

• The dates of any meetings held between the Scottish Government and NHS Lothian and/or NHS Greater Glasgow and Clyde  regarding the new NHS East and NHS West structure since 1 January 2025.
• Any minutes of these meetings.
• Briefings from these meetings prepared for Scottish Government Ministers.
• Who attended these meetings.

Response

You asked for a review of this case specifically around where the response stated that “Three briefings relating to sub-national planning are held. These were informed by a range of stakeholder input and legal advice and were not prepared as outputs of the informal catch-up discussions referred to above. The briefings are withheld under section 29(1)(a) of the Freedom of Information (Scotland) Act 2002 (formulation and development of government policy) and section 30(b)(i) and (ii) (free and frank provision of advice and free and frank exchange of views). Both exemptions are subject to the public interest test.”

You contended that, “Given the public interest involved in this issue as in all matters relating to the NHS, and the potential far-reaching consequences of proposed NHS re-organisation, it cannot be correct to withhold every word in three separate briefings on the matter” and you requested that “the briefings be provided with the sections redacted where necessary.”

My role as a reviewer is to look at the case afresh to establish whether the original response should be confirmed, with or without modifications as appropriate, or a fresh decision should be substituted. I have reviewed this case and have concluded that the original decision should be confirmed but with some modifications.

In reaching this conclusion, I have reviewed the case looking to ensure that all in scope information has been identified and that adequate and proportionate searches have been conducted to identify that information, and I am confident that is the case. I have also looked at the application of exemptions using sections 29(1)(a) and section 30(b)(i) & (ii) of FOISA and your dissatisfaction at the outcome of applying the public interest test.

Modification

I have found that the application of Sections 30(b)(i) & (ii) of FOISA should have been separated out within the original response, with clear reasons given for why each exemption applied and to which briefing. I apologise for this error in the original response. I have also found that Section 25(1) - information otherwise accessible - applies to some of the information contained within the briefings and I have set out below where that is the case.

I have reviewed whether the three briefings referred to could be released to you, once relevant sections were redacted. The exemptions apply to significant sections of the documents, but please find the documents in the Annex to this letter. I have set out below the reasons for these exemptions.

The three briefings referred to in the original response are as follows:

1. A submission to the Cabinet Secretary for Health and Social Care, dated 8 October 2025 to seek agreement on a new approach to advancing population level planning;

2. A submission to the Cabinet Secretary for Health and Social Care, dated 6 November 2025 to request the signing of the Co-operation and Planning Directions 2025, given under section 2(5) of the National Health Service (Scotland) Act 1978, section 11(2) of the Patient Rights (Scotland) Act 2011 and section 52(2) of the Public Bodies (Joint Working) (Scotland) Act 2014. The Directions were attached to this submission; and

3. A submission to the Cabinet Secretary for Health and Social Care, dated 18 November 2025, and briefing on Sub-National Planning in advance of a meeting with National Staff Side representatives.

I have reviewed all three briefings separately and set out my findings below.

1. Submission to the Cabinet Secretary for Health and Social Care, dated 8 October 2025 to seek agreement on a new approach to advancing population level planning.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information within this document because it relates to the formulation and development of the Scottish Government’s policy on sub-national planning. I find this exemption was applied correctly, because the Scottish Information 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. The formulation of government policy suggests the early stages of the policy process where options are identified and considered, risks are identified, consultation takes place and recommendations and submissions are presented to Scottish Ministers.

Section 30(b)(i) – free and frank provision of advice (in relation to Ministerial/official discussions and policy formulation and development) also applies to some of the information within this document. 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 before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on sub-national planning would substantially inhibit the provision of such advice in the future.

I find that Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation (in relation to communications/meetings with external stakeholders) also applies to some of the information within this document. 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 officials/Ministers to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions with NHS Boards on sub national planning would substantially inhibit such discussions in the future, because these stakeholders might be reluctant to provide their views fully and frankly if they believe that those views were likely to be made public.

I have applied the public interest test to each of these exemptions within this document and have set out my findings below

Reference is made to five documents within this briefing where the information is otherwise accessible as they have all been published and therefore Section 25(1) applies. These are:

• Scottish Government’s Programme for Government: Programme for Government 2025 to 2026 - gov.scot
• NHS Operational Improvement Plan: NHS Scotland operational improvement plan - gov.scot
• Strategic Renewal Framework: Health and Social Care Service Renewal Framework - gov.scot
• Population Health Framework: Scotland's Population Health Framework - gov.scot
• Directors Letter 2024/31: A Renewed Approach to Population Based Planning Across NHS Scotland

If you are unable to access these documents, please let me know and I will arrange for you to be sent hard copies.

2. Submission to the Cabinet Secretary for Health and Social Care, dated 6 November 2025 to request the signing of the Co-operation and Planning Directions 2025 – Directions also attached.

The exemption under Section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information in this document because it relates to the formulation and development of the Scottish Government’s policy on sub-national planning. I find this exemption was applied correctly, for the same reasons as set out above.

Section 30(b)(i) – free and frank provision of advice (in relation to Ministerial/official discussions and policy formulation and development) also applies to some of the information within this document for the same reasons as set out above.

Finally, I find that Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation (in relation to communications/meetings with external stakeholders) also applies to some of the information within this document for the same reasons as set out above.

In relation to the Directions which were attached to the submission, these were published as part of the Director’s Letter (2025)25 issued on 13 November 2025 so Section 25(1) – information otherwise accessible - applies. You can access this via this link https://www.publications.scot.nhs.uk/files/dl-2025-25.docx but if you are unable to access this document, please let me know and I will arrange for you to be sent a hard copy.

I have applied the public interest test to each of the relevant exemptions within this document and have set out my findings below.

3. Submission to the Cabinet Secretary for Health and Social Care, dated 18 November 2025, providing briefing on Sub-National Planning in advance of a meeting with National Staff Side representatives.

The exemption under Section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information contained in this document because it relates to the formulation and development of the Scottish Government’s policy on sub-national planning. I find this exemption was applied correctly, for the same reasons as set out above.

Section 30(b)(i) – free and frank provision of advice (in relation to Ministerial/official discussions and policy formulation and development) also applies to some of the information within this document for the same reasons as set out above.

Finally, I find that Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation (in relation to communications/meetings with external stakeholders) applies to some of the information 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 officials/Ministers to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions with Trade Union representatives on sub national planning would substantially inhibit such discussions in the future, because these stakeholders might be reluctant to provide their views fully and frankly if they believe that those views were likely to be made public.

Public Interest Tests

The exemption under Section 29(1)(a) 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 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 sub national planning 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 development and early implementation.

The exemption under Section 30(b)(i) (free and frank provision of advice, in relation to Ministerial/official discussions and policy formulation and development) is also 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 Ministers as part of the process of exploring and refining the Government’s policy position sub national planning, until the Government as a whole can adopt a direction 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 and decision making process, which would not be in the public interest.

Exemption under Section 30(b)(ii) (free and frank exchange of views for the purposes of deliberation, in relation to communications/meetings with external stakeholders) 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 Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on sub national planning, until the Government as a whole can adopt a direction that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, such as that provided by NHS Boards and Trade Union representatives. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy and decision making process, which would not be in the public interest. There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual’s contribution was released against their wishes.

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 202600501485 - Information Released - Annex

File type

PDF

File size

195.2 kB