Publication - FOI/EIR release

Potential impact of Brexit upon school-level education in Scotland: FOI review

Published: 1 March 2019
Directorate: Learning Directorate
Topic: Brexit, Education, Public sector
FOI reference: FOI/18/03575 Review
Date received: 24 December 2018
Date responded: 26 February 2019

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

Information requested

Any material held by the Scottish Government relating to the potential impact of Brexit upon school-level education in Scotland (NB this would also include indirect impacts upon schools such as the possible effect on recruitment to Initial Teacher Education programmes).

Response

Further to my email of 11 January, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for any material held by the Scottish Government relating to the impact of Brexit on school-level education in Scotland. I have concluded that the original decision should be confirmed but with modifications.

I have reconsidered the application of exemptions to the information contained in the documents released in response to your original request. I have confirmed that these exemptions are appropriate. I have also identified additional documents which fall within the scope of your request and have released these, in some instances subject to redaction. As always, our aim is to provide information whenever possible but in relation to some of these documents we are unable to provide some of the information you have requested because exemptions under sections 29(1)(a) (policy development), 30(b)(i) and (ii) (free and frank provision of advice and exchange of views), 30(c) (prejudice to the effective conduct of public affairs), 36(1) (confidentiality in legal proceedings) and 38(1)(b) (personal data) of FOISA apply to that information.

Our original response claimed that the public interest did not need to be considered when applying exemptions to the information you had asked for. This is, as you noted in your request for a review, not the case and I apologise that this aspect of your request was not handled correctly. I have therefore, in reconsidering the documents originally released and in considering the additional documents, considered whether the public interest in disclosing the information is outweighed by the public interest in withholding it.

The reasons why the exemptions apply, and the consideration of the public interest test in each case, are explained in Annex A to this letter. A schedule of the new documents being released is attached as Annex B.

ANNEX A

REASONS FOR NOT PROVIDING INFORMATION

An exemption under section 38(1)(b) of FOISA (personal data) applies to the redacted information because it is the 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 whether the public interest in disclosing the information outweighs the public interest in applying the exemption.

An exemption under section 29(1)(a) of FOISA (policy formulation) applies to some of the information you have requested because it relates to the development of the Scottish Government’s policy on exiting the EU.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered whether 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 as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in allowing a private space within which officials can record the development of policy on exiting the EU. This 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 would be likely to undermine the quality of the decision making process, which would not be in the public interest.

Exemptions under sections 30(b)(i) and (ii) of FOISA (free and frank provision of advice and exchange of views) apply to some of the information you have requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. They recognise 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.

These exemptions are subject to the ‘public interest test’. Taking account of all the circumstances of this case, we have considered whether 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 as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the 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 exiting the EU. Premature disclosure of the content of free and frank advice on EU exit would substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive issue.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) also applies to some of the information requested. Disclosing this information would substantially prejudice our ability to conduct discussions with stakeholders on the development of their own policies before a settled position is reached by them.

This exemption is also subject to the ‘public interest test’. Again, taking account of all the circumstances of this case, we have considered whether 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 as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in allowing a private space within which officials can engage with stakeholders, as part of the process of exploring those stakeholders’ own positions on exiting the EU. Premature disclosure of such information would be likely to inhibit such exchanges until a point when they are fixed and agreement may be significantly less likely to be achievable. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

Finally, an exemption under section 36(1) (confidentiality in legal proceedings) applies to some of the information you have requested because it is legal advice and disclosure would breach legal professional privilege.

This exemption is also subject to the ‘public interest test’. Again, taking account of all the circumstances of this case, we have considered whether 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 as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

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.