All correspondence between officials and ministers relating to FOI/18/02514: FOI release

FOI reference: FOI/18/03160  
Date received: 30 October 2018 
Date responded: 19 November 2018

 

 

Any correspondence (emails, letters, phone calls, handwritten notes or any other documents) between the lead official on FOI request 18/02514 and/or Scottish Government ministers and/or the SG FOI Unit and/or special advisers regarding the response to that FOI request. Information should include: a detailed timeline (with dates) of when the lead official contacted ministers/special advisers (and vice versa); any notes or comments or suggestions offered by ministers or special advisers to the lead official; any input from the SG FOI Unit; any advice or comments from ministers/spads rejected by the lead official; any advice or comments from ministers/spads accepted by the lead official; any correspondence (as defined previously) on the use of exemptions; any correspondence (as defined previously) on material to be redacted; any information on delays to the FOI response; any information on who received the FOI to clear, when they responded and what they said; and any information on delays to the FOI response.

 

 

We have examined our records covered by your request and have provided the information we hold that is considered to be within the scope of your request in the attached schedule.
While our aim is to provide information whenever possible, we have redacted in this instance some of the information because an exemption under section 34(1)(a) and (b) - Investigations by Scottish public authorities and proceedings arising out of such investigations of FOISA applies to that information. The reasons why that exemption(s) applies are explained below.

 

Also we are unable to provide some other information you have requested because exemptions under section s.38(1)(b) (personal data the disclosure of which would contravene data protection principles) of FOISA apply to this information. Names of staff graded below Senior Civil Servant (SCS) have been withheld to comply with General Data Protection Regulation and the Data Protection Act 2018.

Finally in response to your request about FoI/ 18/02514 for any correspondence on the use of exemptions; any correspondence on material to be redacted and any information on delays to the FOI response; I can confirm that there were no exemptions applied , no redactions and the issue of the response was not delayed ( due 10 October 2018 issued on the 3 October 2018).

 

 

An exemption applies, subject to the public interest test
An exemption under section 34(1)(a) and (b) of FOISA applies to some of the information you have requested. Section 34 of the Freedom of Information (Scotland) Act 2002 (FOISA) contains a wide range of exemptions, all relating to investigations carried out by Scottish public authorities.
In the email exchanges reference is made to a complaint that is currently the subject of an on-going investigation and athough no proceedings have been taken, the Scottish Government, has a duty to conduct an investigation to ascertain whether someone should be prosecuted for an offence.
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 some public interest in release because:
• it is in the general public interest that information is accessible i.e. whether disclosure would enhance scrutiny of decision-making processes and thereby improve accountability and participation;
• it would contribute to ensuring effective oversight of expenditure of public funds and that the public obtain value for money;
• disclosure would contribute to ensuring that any public authority with regulatory responsibilities is adequately discharging its functions;
• disclosure would ensure fairness in relation to applications or complaints, reveal malpractice or enable the correction of misleading claims;
However, this is outweighed by the public interest in the Scottish Government carrying out its duty as a Scottish public authority for the purposes of an investigation which the authority has a duty to conduct to ascertain whether a person should be prosecuted for an offence .

In coming to our decision to apply the exemption under section 34(1)(a) of FOISA we have satisfied ourselves that at this point in time the following tests are fulfilled:
• the information has been held by a Scottish public authority at any time;
• the information was held for the purposes of an investigation;
• the investigation was one which the authority had a duty to conduct; and
• the information was held for the purposes of ascertaining whether a person should be prosecuted for an offence.

In order for section 34(1)(b) of FOISA to apply we are satisfied that at this point in time the following tests have been fulfilled:
• the information been held by a Scottish public authority at any time;
• the information was held for the purposes of an investigation conducted by the authority (which is still ongoing);
• the investigation could lead (or could have led) to a decision by the authority to make a report to the procurator fiscal, to allow the procurator fiscal to decide whether or not to instigate criminal proceedings.
This is in line with the Scottish Information Commissioner Decision 003/2009.

 

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