Brexit: unheard voices publication, correspondence between ministers and officials: FOI release

Information requested

Any correspondence between ministers and officials of the Scottish Government sent since January 2018 regarding the production of ‘Brexit: unheard voices - views from stakeholders across Scotland on leaving the EU’.

 

Response

I enclose a copy of some of the information you requested in Annex B of this letter.
While our aim is to provide information whenever possible, in this instance we are unable to provide most of the information you have requested because exemptions under sections 29(1)(a) (formulation or development of government policy), 30(b)(i) & 30(b)(ii) (free and frank exchange of views for the purposes of deliberation) and 38(1)(b) (applicant has asked for personal data of a third party) of FOISA applies to that information. The reasons why these exemptions apply are explained in Annex A of this letter.

 

ANNEX A
REASONS FOR NOT PROVIDING INFORMATION
An exemption applies
Section 29(1)(a)
An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on Scotland’s place in Europe following the UK’s decision to leave the EU.
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 Scotland’s place in Europe following the UK’s decision to leave the EU will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Sections 30(b)(i) and 30(b)(ii)
Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final lines to take are used. Disclosing the content of free and frank briefing material on any correspondence between ministers and officials of the Scottish Government sent since January 2018 regarding the production of ‘Brexit: unheard voices - views from stakeholders across Scotland on leaving the EU’ will substantially inhibit such briefing in the future, particularly because discussions on the issue are still ongoing and final decisions have not been taken and these discussions relate to a sensitive or controversial issue such as the UK’s decision to leave the EU.

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 to Ministers in lines to take. It is clearly in the public interest that Ministers can properly and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature 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.

Section 38(1)(b)
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. containing names and contact details of individuals, 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.

 

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foi-19-01480 Annex B information requested

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