Correspondence regarding the Programme for Government 2020-21: FOI release

Information requested

You asked for ‘From 1 August to 7 September 2020: Copies of any internal briefings from civil servants for the Scottish Government Cabinet and/or special advisors regarding the Programme for Government 2020-21.’

Response

I enclose a copy of some of the information you requested.

Some of the information you have requested is available from: https://www.gov.scot/programme-for-government/.

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 an exemptions under sections 29(1)(a) (policy formulation), s.30(b)(i) (Free and frank provision of advice), s.30(b)(ii) (free and frank exchange of views for the purpose of deliberation) and s.38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption(s) applies are explained in the Annex to this letter.

Annex - Reasons for not providing information
An exemption(s) under sections 38(1)(b) (personal data relating to a third party) of FOISA applies to some the information you have requested. This exemption applies as it related to personal data of a third party (i.e. names, education centres, towns, email addresses, telephone numbers) 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.

An exemption applies, subject to the public interest test s.29(1)(a) (Formulation and development of Scottish Government policy)

An exemption under section 29(1)(a) of FOISA applies to some of the information you have requested because it relates to the development of Scottish Government policy for inclusion in the 2020-21 Programme for Government.

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 these discussions will be disclosed in the near future, when it may undermine or constrain the government’s view on policies while they are still under discussion and development.

s.30(b)(i) (Free and frank provision of advice) and s.30(b)(ii) (free and frank exchange of views for the purpose of deliberation)

An exemption under sections 30(b)(i) (Free and frank provision of advice) and 30(b)(ii) (free and frank exchange of views for the purpose of deliberation) of FOISA applies to some 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. It recognises 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. Disclosing the content of free and frank advice on policy proposals and development options in relation to the Programme for Government will substantially inhibit the provision of such advice in the future.

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 a private space within which officials can provide free and frank advice and views to Ministers in briefing during the development of commitments for the Programme for Government. It is clearly in the public interest that Ministers can properly explore and refine the Government’s policy proposals included in the publication. 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.

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/202000089239 - Information Released

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