Communications between FOI officers and Special Advisers: FOI release

FOI reference: FOI/18/00766
Date received: 12 March 2018
Date responded: 10 April 2018

Information requested

1. In a response to a request for information dated 6 March 2018 you noted that it would be too costly to check the FoI tracker system for all cases which were sent to the 'FoI SpAds' mailbox. I would now like to request information relating to how many emails in the 'FoI SpAds' mailbox originated from the Freedom of Information team. I presume this does not require a manual search of 'each and every case file'. To avoid this request being too broad I will limit it to emails in the last twelve months (i.e. since 12 March 2017).

2. Copies of any internal policy documents or guidance relating to the operations of the 'FoI SpAds' mailbox or emails to the Freedom of Information team regarding the operation of this mailbox.

3. Any correspondence related to the Freedom of Information request with reference FoI/18/00392. This should include any email correspondence internally relating to this request for information.

Response

Question 1

Between 1 January 2018 and 12 March 2018 92 emails to the 'FOI SpAds' mailbox originated from the Freedom of Information team.

You may find it helpful to note that the Freedom of Information team provide advice and guidance to case handlers dealing with requests across the Scottish Government, this includes where appropriate, providing advice in relation to responses being considered by Special Advisers.

It may also be helpful to note that where it is appropriate to retain a record of such exchanges, these records will from part of the case file on individual FOI cases. SG records management guidance make it clear that Mailboxes are not the means through which official records are maintained. As a result, we do not hold the information you have requested for the period from 12 March 2017 and 31 December 2017 because it was routinely destroyed, in accordance with our standard records management practice, before the date of your request before the date of your request.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.

Question 2

In our response to your FOI request FOI/18/00392 we provided you with all of our internal guidance for working with Special Advisers on Freedom of Information requests. Point 2 within Annex A of this information /publications/foi-18-00392/ contains internal guidance for the operation of the 'FoI SpAds' mailbox.

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

Question 3

I have enclosed most of the information you have requested as a separate document to this letter.

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.29(1)(d) (Operation of Ministerial private office), s.38(1)(a) (personal information), s.38(1)(b) (personal information) and s.30(b)(i) and (ii) (free and frank advice and exchange of views) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Reasons for not providing information

An exemption applies.

An exemption under section 38(1)(a) of FOISA (personal information) has been applied to your name and contact details because it is personal information of which you are the data subject, and so it is subject to the Data Protection Act 1998 (DPA). 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 38(1)(b)(personal information) applies to some of the information you have requested. This exemption applies because the information is personal data of a third party, names and contact details, 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.

An exemption applies, subject to the public interest test.

Exemptions under section section 29(1)(d) of FOISA applies to some of the information you have requested because it relates to the operation of any Ministerial private office.

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. However, there is a greater public interest in preserving the efficient and effective operation of the private office.

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA apply to some of the information you have requested. These exemptions apply because disclosure would be likely to inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. These exemptions recognise the need for Ministers and officials to have a private space within which to seek advice and views from colleagues before finalising responses to FOI requests and other enquiries. Disclosing the content of free and frank advice or views will substantially inhibit staff from providing such comments in the future in similar cases.

These exemptions 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 a private space within which officials can provide free and frank advice and views when considering how to respond to an FOI request. It is clearly in the public interest that Ministers and officials can properly and accurately answer FOI requests. They need full and candid advice to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

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

FOI18-00766 - related email correspondence.pdf

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