Ministerial correspondence relating to the Child Abuse Inquiry: FOI release

FOI reference: FOI/17/02549
Date received: 26 October 2017
Date responded: 22 November 2017

Information requested

Any correspondence (meetings, minutes of meetings, emails, letters, phone calls, briefs, notes or otherwise) between Paul Johnston and Scottish Government ministers on the topic of the Scottish Child Abuse Inquiry between 1 January 2016 and 1 August 2016.

Any correspondence (meetings, minutes of meetings, emails, letters, phone calls, briefs, notes or otherwise) between Donald Henderson and Scottish Government ministers on the topic of the Scottish Child Abuse Inquiry between 1 January 2016 and 1 August 2016.

Response

I enclose some of the information you have requested at Annex B of this letter, however, we have redacted names and personal information in line with section 38(1)(b) (personal data relating to a third party). We have also applied exemptions and redactions under Section 30(b)(i) (free and frank provision of advice), Section 30(b)(ii) (free and frank exchange of views) to some of the information. The reason why this exemption applies is explained in Annex B to this letter.

I have also identified that we hold other pieces of correspondence which would fall within the scope of your request. However, while our aim is to provide information whenever possible, in this instance we are unable to provide the information because exemptions under Section 30(b)(i) (free and frank provision of advice), Section 30(b)(ii) (free and frank exchange of views), and Section 37(b)(ii) (created by a person conducting an inquiry or arbitration, for the purposes of that inquiry or arbitration) of FOISA applies to the information requested. The reasons why these exemptions apply are explained below.

Reasons for not providing information

Section 38(1)(b) (personal information)

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 names of individuals 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.

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

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice for the purposes of deliberation. This exemption recognises the need for officials to have a private space within which to provide free and frank provision of advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of this advice relating to the Inquiry and the carrying out of Minister's statutory duties under the Inquiries Act 2005, would substantially inhibit the provision of such advice in the future.

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 Ministers and officials a private space within which to explore and refine the Government's position.

Section 30(b)(ii) (free and frank exchange of views).

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 and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on the information requested would substantially inhibit such discussions in the future.

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 Ministers and officials a private space within which to explore and refine the Government's position.

Section 37 (1) (b) (ii) (created by a person conducting an inquiry or arbitration, for the purposes of that inquiry or arbitration).

Exemptions under section 37 (1) (b) (ii) (created by a person conducting an inquiry or arbitration, for the purposes of that inquiry or arbitration) of FOISA applies to the information requested.

This exemption applies because the information you have requested was created by a person conducting an inquiry, and was created for the sole purpose of that inquiry. In addition, it is held by the Scottish Government solely because it is contained in such a document and not for any other Scottish Government business purpose. 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.

Section 37 of FOISA ensures that where authorities hold information solely because of their involvement in court proceedings, an inquiry or arbitration, they are not required to disclose the information out with those proceedings.

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FOI-17-02549 - correspondence - Donald Henderson and Scottish Government ministers.pdf

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