Correspondence between Cabinet Secretary for Finance and Local Government and Cabinet Secretary for Education that mentions "Path To Balance": FOI Review

Information requested

Original request: 202500494271

All correspondence between Shona Robison and her office, and cabinet secretary for education Jenny Gilruth and her office, that mentions Path To Balance or is related to Path To Balance.

Can I also have sight of all correspondence between the Cabinet Secretary and the Director General of education on Path To Balance.

Response

Further to my letter of 21 January 2026, I have now completed my review of the response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for a review of the government’s response to 202500494271.

All correspondence between Shona Robison and her office, and Cabinet Secretary Jenny Gilruth and her office that mentions Path To Balance or is related to Path To Balance. Can I also have sight of all correspondence between the Cabinet Secretary and the Director General for Education and Skills that mentions Path To Balance.

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.

I have concluded that the original decision should be confirmed with some modifications. I have reviewed the searches that were conducted to identify the information requested and have identified no further relevant information held by the Scottish Government which would be relevant other than what was identified in the original response. I am satisfied that the searches conducted were adequate and proportionate and have identified all information held.

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.

FOI responses and reviews are undertaken independently by Scottish Government civil servants and are considered on their own merits 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.

I have reconsidered the exemptions applied, reviewing all the information on a line by line basis and by and large I agree with the exemptions applied. The exemptions applied were under s.29(1)(b) (Ministerial communications), s.30(b)(i) (free and frank exchange of advice), and 38(1)(b) (personal information) of FOISA.

I am withdrawing reliance on certain exemptions at s.29(1)(b) as some of the information which it pertains to has been disclosed to you in another response. I am therefore now disclosing that here too. Further, there is some other information which should be released – this information is contained in Annex A.

I am confirming the application of the exemption at section 30(b)(i) of FOISA (free and frank advice) 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 and exchange of views for the purposes of deliberation. The exemption recognises the need for Ministers and officials to have a private space within which to seek and discuss advice/views. Disclosing the content of free and frank information will substantially inhibit such information in the future. This exemption is subject to the public interest and prejudice test. 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 exemptions. 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 free and frank advice and views to Ministers and with each other. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest as it would substantially prejudice the ability of Ministers to engage with Scottish Government officials.

An exemption under section 38(1)(b) (personal information) of FOISA applies to some of the information in the message exchanges because it comprises personal data of a third party 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.

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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 202600500969 - Information released - Annex A

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