Documentation held by the Scottish Government about Prostitution (Offences and Support) (Scotland) Bill: FOI release

Information requested

Could you supply all documentation held by the Scottish Government, including correspondence sent and received (including internal), minutes/notes from meetings, briefings and analysis, about Ash Regan's prostitution bill, from the last month?

Response

I enclose a copy of some of the information you requested. Please see the attached Annexes which contain items identified in relation to your request. 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 the following exemptions apply:

• Section 29(1)(a) formulation or development of government policy
• Section 29(1)(b) Ministerial Communications
• Section 30(b)(i) free and frank provision of advice
• Section 38 personal information

Further information on why these exemptions apply can be found below.

Some of the information you have requested is publicly available online. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you have any difficulty in obtaining this information from the links below, then please contact me again and I will send you a paper copy.

• Scotland: Bishops calls for action on exploitation with support for new Prostitution Bill | ICN
• Scottish Government Response to the Committee's Stage 1 Report on the Prostitution (Offences and Support) (Scotland) Bill | Scottish Parliament Website
• Meeting of the Parliament: 03/02/2026 | Scottish Parliament Website

Furthermore, we have recently received and responded to a number of similar requests which relate to the Prostitution (Offences and Support) (Scotland) Bill which will soon be available to view online here - Publications - gov.scot.

FURTHER INFORMATION ON EXEMPTIONS APPLIED

Exemptions under section 29(1)(a) formulation or development of government policy apply to some of the information requested because it relates to the government developing its response to the member’s bill on prostitution, which included considering the interaction with existing policy development in this area.

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 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.

Exemptions under Section 29(1)(b) – Ministerial Communications apply to communications between Ministers. This includes communications relating to proceedings of the Scottish Cabinet (or of any committee of that Cabinet). “Minister” includes junior Scottish ministers as well as members of the Scottish Government. The exemption covers information “relating to” Ministerial communications, which covers more than just direct communications between Ministers. It could also cover things like: (i) records of discussions between Ministers (ii) drafts of letters/documents, whether or not these were finalised or sent.

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 issues can be discussed and explored, 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. 

Exemptions under Section 30(b)(i) free and frank provision of advice apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice for the purposes of deliberation.  Section 30(b)(i) recognises the need for Ministers and officials to receive advice within a private space before the Scottish Government reaches a settled public view.

These exemptions are 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 maintaining the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can reach a final decision.

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 policy-/decision[1]making process, which would not be in the public interest.

Exemptions under Section 38 (personal information) of FOISA contains four exemptions, all relating to personal information. Information is exempt from disclosure if it is:

• the personal data of the person requesting the information (section 38(1)(a));
• the personal data of a third party – but only if other conditions apply (section 38(1)(b));

• personal census information (section 38(1)(c));
• or a deceased person's health record (section 38(1)(d)).

The exemptions in sections 38(1)(a) and (b) regulate the relationship between FOISA, the UK General Data Protection Regulation and the Data Protection Act 2018. Processing of personal data must be fair as well as lawful, so fairness needs to be considered separately. Guidance issued by the ICO in relation to the UK GDPR states that fairness means public authorities should only handle personal data in ways that people would reasonably expect and not use it in ways that have unjustified adverse effects on them. Public authorities should therefore consider the following:

• Whether the individual expects their role to be subject to public scrutiny. Consideration should be given to the person’s seniority, whether they have a public profile and whether their role requires a significant level of personal judgement and individual responsibility.
• Whether any distress or damage would be caused to the data subject as a result of the disclosure.
• Any express refusal by the data subject.
• Whether the information relates to the data subject’s public or private life. A person’s private life is likely to deserve more protection.

Therefore, to protect those individuals from unexpected public scrutiny and potential distress or damage caused by disclosure, it is considered that the exemption, detailed above, is applicable in these circumstances.

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 202600506016 - Information Released - Annex

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