Publication - FOI/EIR release

Communications relating to petition PE1458: FOI review

Published: 2 February 2024
Directorate: Justice Directorate
Topic: Public sector
FOI reference: FOI/202300348435 Review of 202300345955
Date received: 3 March 2023
Date responded: 27 April 2023

Information request and response under the Freedom of Information (Scotland) Act 2002.

Information requested

Information contained in documents, meetings, communications and discussions and any private chat groups or messenger services - within, and between – the Scottish Government and anyone acting for it – and any other person or organisation including the Lord President, Judicial Office, Scottish Courts and Tribunals Service, Law Society of Scotland, Faculty of Advocates and any other organisation, relating to Petition PE1458 and the Scottish Government's commitment to create a register of judges' interests as called for in Petition PE1458 and any work by the Scottish Government and any other organisation consulted by the Scottish Government relating to proposals contained in Petition PE 1458 and any other material considered by the Scottish Government in relation to and accumulated as a result of Petition PE 1458 including any communications with the Scottish Parliament and any others, including communications with, or representations from MSPs, former MSPs, members of the legal profession and judiciary, academics, and anyone else - to create a register of judges' interests from July 2022 to the date of this FOI request

Response

In our original response to your request, some material was released to you (with redactions) and some was withheld. In your request for a review, you wrote that it was in the public interest for, "some, more or all of the withheld information to be released to this request to enable the public to see what progress is being made in creating a register of judicial interests, and how the process of creating a register has gone on, and engaged, or not with relevant parties, including the petitioner and anyone who gave evidence to the Scottish Parliament's Petitions Committee".

I have therefore reviewed the material that was previously redacted or withheld, and the exemptions that were applied. I have also reviewed the application of the public interest test to the redacted or withheld material.

I have concluded that the original decision should be confirmed, with modifications. I am releasing some further information that was previously withheld. However, I am satisfied that it was appropriate for some information to be withheld, under the following exemptions :

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 30(b)(ii) - free and frank exchange of views
Section 38(1)(b) - personal data relating to a third party

You will note that our original response did not cite section 29(1)(b). In carrying out my review, I have decided that some of the material that was previously withheld under section 30(b)(i) should instead have been withheld under section 29(1)(b).

I have explained my reasons for applying each of the exemptions below.

Section 29(1)(a) – formulation or development of government policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested, because it relates to the formulation of the Scottish Government’s policy on a register of judicial interests. This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is some public interest in release, as part of open, transparent and accountable government and given the long-running public petition on this issue. 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 judicial register of interests 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.

Section 29(1)(b) – Ministerial communications

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers. Again, this exemption is subject to the public interest test, and I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 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 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 decision making process.

Section 30(b)(i) – free and frank provision of advice

An exemptions 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, before the Scottish Government reaches a settled public position. Disclosing the content of free and frank advice on a register of judicial interests would substantially inhibit the provision of such advice in the future, particularly where discussions are still ongoing and decisions have not been taken.

As before, this exemption is subject to the public interest test. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 share full and frank advice with Ministers and other officials as part of the process of exploring and refining the Government’s policy position on a judicial register of interests, until the Government as a whole can adopt a policy 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 provision of advice, undermining the quality of the policy making process, which would not be in the public interest.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation

An exemption under section30(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 a private space in which Ministers and officials can discus and explore options, before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on a register of judicial interests would substantially inhibit such discussions in the future.

Again, this exemption is subject to the public interest test. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, but there is a greater public interest in allowing a private space within which officials can share full and frank views with Ministers and other officials as part of exploring and refining the Government’s position on a judicial register of interests, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable 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 and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Section 38(1)(b) – personal data of a third party

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. In this case, the exemption has been applied to the names and contact details of individuals, and disclosing the information 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.

Additional material being released to you

I have also concluded that:

Some redactions that had been made to material previously released to you should be removed, and
Some material that was previously withheld should be released (with redactions, which have been made for the reasons described above).

The reason for releasing this additional material is that I do not believe that its release compromises the formulation of policy, the free and frank provision of advice or the free and frank exchange of views. There is, therefore, not a public interest in withholding it.

This additional material is:

A submission on the register of judicial interests.
An email exchange between policy officials, asking for views on the submission.
A template for the inclusion of policies in the 2022/23 Programme for Government
An entry from the Business Plan for the Civil Law and Legal System Division
An entry from a document setting out business objectives for the Civil Law and Legal System Division.
An entry from a Justice Portfolio tracker (this had previously been provided to you, but some of the redactions have now been removed).
The background for a PQ asked by Russell Findlay (this had previously been provided to you, but some of the redactions have now been removed).

Please find copies of these attached.

About FOI

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