All communications with SPS regarding Isla Bryson: FOI review

Information requested

You asked for a review of our failure to respond to your request dated 27 January 2023 under the Freedom of Information (Scotland) Act 2002 (FOISA) for: 

A copy of any written communication or records of verbal communication between ministers relating to Adam Graham/Isla Bryson, the minutes of any meetings where they were discussed including Scottish Cabinet meetings and any record of correspondence - emails, letters, minutes of phone calls and so on with Scottish Prison Service. This to include any digital messages such as WhatsApp or other.

 

Response

A copy of some of the information you requested is attached. Some information has been provided in the form of an extract because the remainder of the information in that document does not fall within the scope of the request.

Whilst our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under section 38(1)(b), section 29(1) (a), Section 30(b)(i) and 30(b)(ii), section 25(1) and section 36(1) of FOISA applies to elements of the correspondence you requested. The reasons why these apply are explained below.

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

An exemption under section 29(1)(a) (formulation or development of government policy) of FOISA applies to some of the information requested because it relates to the formulation and development of policy on management of transgender prisoners.

This exemption is subject to the ‘public interest test’. We looked at different stages in the policy development. In this case, a distinct and active phase of the current policy development started in January 2023 as a response to public concern around  circumstances of an individual case and then a recognition that this phase will impact the ongoing wider Gender Recognition Policy Review by SPS which though is in its final stages but will take into considerations the lessons learnt review undertaken during this period.

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. Their candour in doing so will be affected by their assessment of whether the discussions on matters relating to this policy review will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

An exemption under section 30(b)(i) (Free and frank provision of advice) of FOISA applies to some of the information you have 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 and other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on transgender prisoners issue will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive or controversial issue of policy around management of Transgender prisoners.

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 and other officials as part of the process of exploring and refining the Government’s policy position on management of transgender prisoners until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

An exemption under section 30(b)(ii) (free and frank exchange of views for the purpose of deliberation) of FOISA applies to some the information you have requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purpose of deliberation. 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 free and frank views before the Scottish Government reaches a settled public view. Disclosing the content of such free and frank exchange of views will substantially inhibit the communication of such matters in the future, which would not be in the public interest. As an individual case is a key starting point around the consideration of advice, the balance of the assessment around this is weighted even more in favour of withholding the information.

Some of the information requested under this request relates to Gender Identity and Reassignment Policy 2014 which is currently under review. The interim measures announced on 09 Feb 2023 - Recommendations - Transgender prisoner management: urgent case review correspondence - gov.scot - will remain in place pending the outcome of the policy review. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact us again and we will send you a paper copy.

An exemption under section 36(1) (confidentiality of communications) of FOISA 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. recognise that there is some public interest in release as part of open and transparent government, and to inform the 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.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI 202300350955 - Information Released - Annex

File type

51 page PDF

File size

666.4 kB

FOI 202300350955- Information to be released- Attachment to Annex

File type

15 page PDF

File size

406.7 kB