Cabinet Secretary, Michael Russell, Correspondence on second EU membership referendum: FOI release

Information requested

You asked for any correspondence received or sent by the Cabinet Secretary for Government Business and Constitutional Relations and former Minister for UK Negotiations on Scotland's Place in Europe, Michael Russell MSP, regarding a second referendum on EU membership since September 2016.

Response

I enclose a copy, with personal details removed in line with GDPR, of the following documents:

1. Letter dated 15 February 2019 – From Cab Sec to a member of the public
2. Letter dated 22 February 2019 – From Cab Sec to public
3. Letter dated 14 February 2019 – post JMC(EN) letter to Joan McAlpine, Convener of the Culture, Tourism, Europe and External Affairs Committee
4. Letter dated 20 February 2019 – From Dundee City Council to Cab Sec
5. email dated 17 January 2019 – To Cab Sec from public
6. Letter dated 14 January 2019 – from Cab Sec to public
7. Letter dated 14 February 2019 – Post JMC(EN) letter to Bruce Crawford, Convener of the Finance and Constitution Committee
8. Note dated 11 January 2019 - to MSPs from Cab Sec
9. Letter dated 15 March 2019 – From Cab Sec to Dundee City Council

Reasons for not providing information
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 they fall under exemptions under sections:

Exemption 28(1)
An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested.  This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations.  The release of these communications about Brexit would mean that the UK Government are likely to be more reluctant to share such information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations.

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 maintaining good relations between the Scottish Government and the UK Government, and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, such as Brexit. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

 Exemption 29(1)(b)
An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers.

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 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 decision making process.

Exemption 36(2)
In contrast to the response below this exemption was not used in the end as all of the relevant documents were released in full.

Exemption 38(1)(b)
An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, ie names of members of the public, email addresses and other personal contact information and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.  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.

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.

FOI-19-00740 Information released

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