Documentation regarding Scotland boycotting Israel and former Chair of Historic Environment Scotland's resignation: FOI release

Information requested

All documentation held by the Scottish Government, including minutes/notes from meetings, correspondence sent and received (including internal), briefings and analysis, about Scotland boycotting Israel, from the last two months.

All documentation held by the Scottish Government, including minutes/notes from meetings, correspondence sent and received (including internal), briefings and analysis, about Hugh Hall's resignation from Historic Environment Scotland, from the last two months.

Response

Response to your first request

I enclose a copy of some of the information you requested in the format you asked for for the first question.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested, for the first question, because an exemption(s) under section(s) s.30(b)(i), s.30(b)(ii), s.38(1)(b), s.30(c), and s.36(c) of FOISA applies to that information. The reasons why that exemption(s) applies are explained in the Annex to this letter.

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/other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on Scotland’s boycott of the Israeli Government will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken, and/or these discussions relate to a sensitive or controversial issue such as the ongoing conflict.

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 provide full and frank advice to Ministers/other officials, as part of the process of exploring and refining the Government’s policy position on Scotland’s boycott of the Israeli Government. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials as this remains a very active and contentious policy space, which in turn will undermine the quality of the policy/decision making process, which would not be in the public interest.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e names 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.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. 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 Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive or controversial issue.

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 and officials a private space within which to explore and refine the Government’s position certain issues, until the Government as a whole can adopt a position that is sound and likely to be effective.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. Disclosing this information would substantially prejudice our ability to conduct free and frank exchange of views for the purposes of deliberation. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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. However, there is a greater public interest in protecting the process of FMQ briefing and ensuring that the Scottish Government is able conduct this aspect of its business effectively.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of 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.

Response to your second request

I enclose a copy of the information you requested. This information is already publicly available. For completeness, I enclose a copy of the information sent to the Scottish Parliament.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption under section s.38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption applies are explained in the Annex to this letter.

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, i.e. the name and contact details of an individual, 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 202600504678 - Information released - Annex

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