Correspondence regarding Deputy First Minister statement on COVID-19 Inquiry: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002
Information requested
All correspondence, briefings, question and answer preparation and notes provided to Shona Robinson in preparation for the ministerial statement on October 31 2023 entitled: Covid-19 Inquiries (Scottish Government's provision of information).
Response
Attached to this response is correspondence surrounding the ministerial statement by the Deputy First Minister on 31 October. Also attached is the final ministerial statement.
While our aim is to provide information whenever possible, in this instance we are unable to provide the ministerial briefing and advice contained within the correspondence you have requested because an exemption under s.30(b)(i) (free and frank provision of advice) of FOISA applies to that information. Preparatory documents for a Minister fall under this provision to ensure that they may act in the best interest of the public with the most accurate and transparent information at hand. As such, we are applying this exemption to your request.
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 as part of the ministerial statement process. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that decisions can be taken. Disclosure of the ministerial briefing you have requested is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the briefing, which would not be in the public interest.
An exemption under s.36(1) of FOISA (confidentiality in legal proceedings) applies to some of the correspondence released alongside this response 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 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.
An exemption under s.38(1)(b) (personal information) of FOISA applies to some of the correspondence released alongside this response because it is personal data of a third party (names and contact details of junior civil servants) and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in s.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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Contact
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Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000
The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG
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