Correspondence relating to National Investment Bank in 2017: FOI release

FOI reference: FOI/18/00383
Date received: 9 February 2018
Date responded: 9 March 2018

Information requested

Any correspondence (emails, typed or handwritten notes, letters, phone calls, minutes of meetings, briefs or otherwise) between Eleanor Emberson and any one of: Nicola Sturgeon, Nicola Sturgeon's staff, Special Advisers, Ministers or Senior Civil Servants on the topic of a National Investment Bank in 2017.

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 exemptions under sections: S.14 (2) (Repeated Requests), S.25 (1) (Information that is Otherwise Accessible), S.29(1)(a) (Formulation or Development of Scottish Government Policy), S.29(1)(b) (Ministerial Communications), S.30(b) (Free and Frank Provision of Advice or Exchange of Views) and S.38(1)(b) (Third Party Data) of FOISA apply. The reasons why those exemptions apply are explained below.

Reasons for not providing information

An exemption applies, subject to the public interest test.

While our aim is to provide information whenever possible, under section 14(2) of FOISA a public authority is not required to comply with a request for information if it is identical or substantially similar to a request which it has already complied with, unless a reasonable amount of time has elapsed between the two requests. An element of this request for correspondence is briefings as this is substantially similar to your request FOI/18/00384. The Scottish Information Commissioner's guidance on repeated requests at:

http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/Section14/Section14Overview.asp

says that in considering whether a reasonable period of time has elapsed between the previous request and the new request, there are two questions which will help the authority:

(i) has the information changed?

(ii) have the circumstances changed?

In this case, we have considered the circumstances and this element of the request will be provided in your response for FOI/18/00384.

An exemption under section 29(1)(a) (Formulation or Development of Scottish Government Policy) of FOISA applies to some of the information you have requested because it relates to the formulation of the Scottish Government's policy on the Scottish National Investment Bank.

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 Scottish National Investment Bank will be disclosed in the near future, when it may undermine or constrain the Government's view on that and related policies.

An exemption under section 29(1)(b) (Ministerial Communications) of FOISA applies to some of the information you have requested because it relates to communication on the Scottish Government's policy on the Scottish National Investment Bank.

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 a private space within which policy positions can be explored and refined, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space also allows for 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, which in turn will undermine the quality of the policy making process.

An exemption under section 30(b)(i) (Free and Frank Provision of Advice) and 30(b)(ii) (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 provision of future advice or the exchange of views. 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 this advice and discussions on the Scottish National Investment Bank will substantially inhibit these in the future, particularly because these discussions are still on-going.

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 positions. This private thinking space is essential to enable all options to be properly considered, based on the best available advice. 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 applies, is not subject to the public interest test.

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 or have any difficulty retrieving this information, then please contact me again and I will send you a paper copy.

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, i.e. names/contact details 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.  

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FoI-18-00383 - related documents .pdf

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