Path To Balance correspondence: FOI Review

Information requested

Original request 202500494313

• All correspondence between Shona Robison and her office, and Deputy First Minister Kate Forbes and her office either in capacity as DFM or Cabinet Secretary for Economy and Gaelic, that mentions Path To Balance or is related to Path To Balance.
• All correspondence between the Cabinet Secretary and the Director General of Economy and Gaelic on Path To Balance.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

• All correspondence between Shona Robison and her office, and Deputy First Minister Kate Forbes and her office either in capacity as DFM or Cabinet Secretary for Economy and Gaelic, that mentions Path To Balance or is related to Path To Balance.
• All correspondence between the Cabinet Secretary and the Director General of Economy and Gaelic on Path To Balance.

Your request for review:

• In your response, you say that the letters between relevant parties cannot be released because it would inhibit substantially the free and frank exchange of advice for the purposes of deliberation. However, the cabinet secretary for Constitution, External Affairs and Culture released his correspondence, albeit with some redactions.
• It cannot be that this exemption only applies to certain ministers. If Angus Robertson does not believe the request would stymie the free and frank exchange of views and is able to release relevant information then your refusal to also do so does not meet the test.
• I would add that I made the same request last year for the same information - although the wording was "spending controls" rather than "path to balance" - and the correspondence was released without issue, albeit again with some redactions. If the public interest test to release the information was met last year, it is met this year.

Our response

I have concluded that the original decision should be confirmed with some modifications. I can confirm we are now releasing information.

When reconsidering the information withheld at review, I have determined that the application of section 30(b)(i)(free and frank advice) was applied incorrectly to some of the information and I am now releasing some information contained in Annex A.

However when reviewing the information I have determined that some exemptions do apply to that information for release, explained further below:

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 before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the Path to Balance will substantially inhibit the provision of such advice in the future.

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 Ministers, as part of the process of exploring and refining the Government’s position on the Path to Balance, 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 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 decision making process, which would not be in the public interest.

Section 29(1)(b) – Ministerial Communications

While our aim is to provide information whenever possible, in this instance an exemption under Section 29(1)(b), Ministerial Communications, has been applied to some of the information requested. 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 some public interest in releasing the information requested in support of an open, transparent and accountable government. However, this is outweighed by the greater public interest in allowing Scottish Ministers to have a private space to discuss matters pertaining to the development of Scottish Government policy.

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 a small amount of the information requested because it is personal data of a third party, ie names/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.

In your review request you ask why certain correspondence has been released from a separate FOI request relating to the Cabinet Secretary for Constitution, External Affairs and Culture but not in this instance. You also note that similar information has been released previously.  Individual FOI responses and reviews are considered on their own merits by Scottish Government civil servants, based on the specific wording of the request and on the particular information that is covered by the request. While information of a similar nature may have been disclosed in a previous FOI request, we must consider every request on its own merits and in light of the circumstances around that 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 202600500951 - Information released - Annex A

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