Affordable Housing Supply Programme co-ordination: FOI review

Information requested

Provide the Affordable Housing Supply Programme Co-ordination Group meeting and agendas for all meetings since November 2021.

Response

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

In doing so, I reviewed the approach taken by the request officer and confirmed their understanding of the application of the exemptions cited (Section 38(1)(b) (Personal information) and Section 30 (b) (ii), including the public interest test where this applies to this exemption.

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 (ie the names of individual officials) 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. I note and regret that this information was not included in the original reply, for which you have my apologies.

I have separately considered my own understanding of the exemptions applied, including whether they apply to the withheld/redacted information in this case. For those elements subject to the exemption under Section 38(1)(b) which relate to the names of officials, which, as noted, is not subject to the public interest test, I consider the decision to withhold these to be reasonable and so would uphold that decision.

The initial decision could also have made clearer that the Section 38(1)(b) (Personal information) exemption applied covers most of the total redactions in the requested documents, applying to all redactions in the documents released with the exception of the May 2022 agenda, which included redactions made under Section 30(b)(ii).

The exemption applied under Section 30(b)(ii) allows for elements to be withheld, subject to the public interest test, if release of parts of the material might be considered to inhibit the free and frank exchange of views for the purposes of deliberation. I note that an explanation of the requirement of the application of the public interest test in relation to this exemption was not noted in the initial response as it should have been. An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) was considered to apply 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. This exemption is, however, subject to the ‘public interest test’.

Taking into account the circumstances of the material and the consideration given to circumstances where views are being sought or considered on policy decisions and direction, I have reached the conclusion that the exemption does apply, subject to the public interest test, to the redacted information. In this case, however, my view is that the public interest test in withholding, rather than releasing, this information has not been met. I am therefore pleased to enclose the relevant document (May 2022 Agenda) removing the redactions initially applied under Section 30(b)(ii).

About FOI

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FOI review - 202300339301 - information released

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