Publication - FOI/EIR release

Briefings for Fiona Hyslop's meetings in Japan: FOI release

Published: 7 September 2017
Directorate: External Affairs Directorate
Topic: International, Public sector

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

FOI reference: FOI/17/01620
Date received: 12 July 2017
Date responded: 14 August 2017

Information requested

All briefings prepared for Fiona Hyslop for meetings in Japan between February 11, 2017 and February 18, 2017.
All minutes, actions points or notes taken following the individual meetings.

Response

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 exemptions under the following sections of FOISA apply to that information:

29(1)(a) of FOISA (formulation or development of government policy)
30(b)(i) (free and frank provision of advice)
30(b)(ii) (free and frank exchange of views)
30(c) (otherwise prejudice effective conduct of public affairs)
32(1)(a)(i) (relations between the UK and any other state)
33(1)(b) (commercial interests)
38(1)(b) (personal data)

The reasons why these exemptions apply are explained below.

Reasons for not providing information

The outcomes of the visit were described to the Scottish Parliament in response to a written question S5W-07940 answered on 10 March 2017. Answers to parliamentary questions can be found on the Scottish Parliament's website at http://www.parliament.scot/parliamentarybusiness/motions-questions-and-answers.aspx.

Additionally, outcomes of some of the meetings were included in press releases issued during the visit. These can be found on the Scottish Government website at the following addresses. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

http://news.gov.scot/news/strengthening-academic-links-with-japan
http://news.gov.scot/news/scottish-expertise-critical-to-japans-energy-future
http://news.gov.scot/news/japans-growing-market-for-scotch
http://news.gov.scot/news/from-tokyo-with-love
http://news.gov.scot/news/scotland-prime-location-for-japanese-investment
http://news.gov.scot/news/sharing-dementia-expertise
http://news.gov.scot/news/culture-secretary-heads-to-japan-today

Exemptions apply.

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 the UK's withdrawal from the European Union.

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. Their candour in doing so will be affected by their assessment of whether the discussions on the UK's withdrawal from the European Union 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) 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 view.

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 position on matters relating to relations with Japan, 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 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.

An exemption under section 30(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 Ministers and officials to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions with external organisations on matters such as their plans for future development, potential international partnerships, and their views on domestic and international issues will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly while these discussions are still ongoing and decisions have not been taken, and/ or these discussions relate to a sensitive or controversial issue.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers and officials to be able to meet and communicate, often in confidence, with external stakeholders on a range of issues, including prospects for commercial activity and views on domestic and international political matters. Disclosing the content of these communications and information about these meetings, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to participate in meetings and provide their views fully and frankly if they believe that their views are likely to be made public, particularly while these discussions are still ongoing and decisions have not been taken, and/or these discussions relate to a sensitive or controversial issue. This would significantly harm the Government's ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed policies and decisions.

Section 30(b)(ii) and section 30(c) 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 and officials a private space within which to communicate with appropriate external stakeholders as part of the process of maintaining and developing trade, investment and other connections with Japan. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, such as that provided by investors, universities and public bodies in Japan. Disclosure is also 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.

An exemption under section 32(1)(a)(i) of FOISA (international relations) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the United Kingdom and Japan. The effective conduct of international relations depends upon maintaining trust and confidence between the UK Government and Japan. In this case, the information about political trends and developments in Japan was given to the Scottish Government on the understanding that it would be treated as being in confidence. If the Scottish Government does not respect this confidence, the UK Government's relations with Japan and its ability to protect and promote UK interests will be substantially prejudiced. States, such as Japan, are likely to be more reluctant to share sensitive information with Scotland or other parts of the United Kingdom in future, which would reduce both the frequency and openness of communications with the UK.

In addition, there is a vital public interest in allowing Scottish Ministers and officials a private space within which to engage in full and frank discussions with their counterparts in other States. Such discussion makes for better quality and better informed policies and decisions on issues with an international dimension, such as cooperation relating to trade and investment, and aids the protection and promotion of UK interests abroad. Inappropriate disclosure is likely to damage other States' or organisations' confidence and trust in the UK and thus undermine future discussions and international relations more generally. There is no public interest in releasing information which might damage UK interests and/or the commercial interests of UK companies.

An exemption under section 33(1)(b) (commercial interests) of FOISA applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of the companies involved and prejudice their ability to compete on the market.

This exemption is subject to the 'public interest test' as well. 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 and transparent government. However, there is a greater public interest in protecting the commercial interests of the companies involved, to ensure continuing inward investment in Scotland.

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 , and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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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