Details of the Misogyny and Criminal Justice in Scotland Working Group: FOI review

Information requested

Could you provide me with copies of all information including, but not limited to, minutes, correspondence, notes of telephone calls and emails held by Scottish Government on:

1. A copy of the Terms of Reference of the “Misogyny and Criminal Justice in Scotland Working Group”

2. Details of funding of the “Misogyny and Criminal Justice in Scotland Working Group”:

• Details of payments to individuals for their involvement in the Working Group, or their representative employers or organisations
• Details of funding provided to the Working Group which may include, but is not limited to, engagement with individuals and organisations outwith the Working Group

Response

I have undertaken a review on behalf of the Director of Justice of our response to that request. It may be helpful if I clarify that the reference in our response to "the answer to your second part of the request" covers points two - four of your request in relation to funding and payments.

I have concluded that the original decision should be confirmed, with modifications. In conducting my review I have identified some further information held which would fall within the scope of your request.

Attached is the following documents -

• The appointment letter for the Independent Chair of the Working Group which provides information on the expenses and time commitment for the chair.
• A submission sent to the Cabinet Secretary for Justice which falls within the remit of your request.

A small amount of information has been redacted because, in this instance we are unable to provide some of the information you have requested because exemptions under section 30(b)(i) (free and frank advice) and section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption(s) applies are explained in the Annex.

Along with the Independent Chair, Baroness Kennedy QC, we have also commissioned an independent report writer for the Working Group. Associated fees and are yet to be confirmed, however, we hope to be able to confirm these in due course. In addition, you may find it helpful to note that no expenses have yet been paid in relation to the working group.

Annex
REASONS FOR NOT PROVIDING INFORMATION

Section 38(1)(b) – applicant has asked for personal data of a third party
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 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.

Section 30(b)(i) – free and frank provision of advice
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Scottish Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the working group will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive issue.

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 full and frank advice to the Scottish Ministers as part of the process of exploring and refining the Government’s policy position on the working group, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, 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.

FOI202100182640 - Information released

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