Transport Scotland - Correspondence that mentions Path To Balance: FOI Review

Information requested

Original request 202500494280

All correspondence between Shona Robison, and her office, and the Cabinet Secretary for Transport, and her office, and correspondence between the Cabinet Secretary for Transport and Director General Net Zero, who holds accountable officer responsibilities for the Transport Portfolio, that mentions 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).

Original request

Your original request asked for all correspondence between Shona Robison, and her office, and the Cabinet Secretary for Transport, and her office, and correspondence between the Cabinet Secretary for Transport and Director General Net Zero, who holds accountable officer responsibilities for the Transport Portfolio, that mentions Path To Balance.

Your review request

“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.”

Response to your request

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

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.

In my review, I have reconsidered the exemptions applied, reviewing all the information on a line by line basis and have determined that some of the information originally withheld should now be released. The exemptions originally applied in the response was s.29(1)(b) (Ministerial communications).

I have modified the original decision and note that some of the information which it pertains to has previously been disclosed to you in an earlier response you received for FOI request 20250049428, relating to information between the Cabinet Secretary for Finance and Local Government and the Cabinet Secretary for Culture, External Affairs and the Constitution. I have also considered that this is in scope of your request and should be released. Release of this also means that an exemption under s38(1)(b) (personal information) of FOISA now applies to some of the information.

Section 29(1)(b) – Ministerial communications

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers.

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 Ministers a private space within which policy positions can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process.

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.

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 202600502597 - Information released - Annex

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