Private sector housing rent controls: FOI Review

Information requested

• Any internal Scottish Government communications on the subject of the introduction private sector housing rent controls.
• Any briefings produced, or analysis carried out, in relation to the subject of private sector housing rent controls.

Between 10 July 2021 and 19 August 2021.

Response

Further to my letter of 4th October 2021 and subsequent update of 22nd October, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

• Any internal Scottish Government communications on the subject of the introduction private sector housing rent controls.
• Any briefings produced, or analysis carried out, in relation to the subject of private sector housing rent controls.

In the light of your request dated 27th September we have reviewed our original response and checked the application of the public interest test to the documents found. We concluded that the original decision should be confirmed, with modifications, to release some documents with redactions. Please find the information attached in the following annexes.

Review Comments – Documents where the original decision is upheld

Material withheld under 29(1)(a) of FOISA

We have re-examined the documents, the exemptions applied and how the public interest test applies. We found that it should still be upheld for some of the information you requested. 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 formulation of the Scottish Government’s policy on national rent controls as part of the shared policy programme between the Scottish Government and the Scottish Green Party.

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 around rent control, as this is a complex area, and Ministers and officials need to be able to consider all available options, particularly as this is at an early stage of development.

36(1) of FOISA

We found that an exemption under section 36(1) of FOISA (confidentiality in legal proceedings) had been correctly applied to some of the information requested because it is legal advice and disclosure would breach legal professional privilege. 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.

Review Comments – Documents where the original decision is revised

We have reconsidered all of the documents, what can be released and where exemptions apply. There are some documents which include factual or process information that can be released with redactions. These include briefings, submissions, and a stakeholder engagement plan. These have been redacted in line with exemptions 30(b)(i), 30(b)(ii) 38(1)(b), of FOISA, as outlined in our response below. The documents and extracts are attached at Annex A.

30(b)(i) of FOISA

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 Ministers and other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on rent controls will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive discussions resulting in policy development which is at an early stage.

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 Ministers and other officials, as part of the process of exploring and refining the Government’s position on the detail of its policy on rent controls. 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 development and decision making process, which would not be in the public interest.

30(b)(ii) of FOISA

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions around rent controls will substantially inhibit such discussions in the future, particularly because policy discussions are still ongoing.

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 and officials a private space within which to explore and refine the Government’s policy on rent controls, 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 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.

30(c) of FOISA

In addition, in some cases where exemption 29(1)(a) had been applied, we found that an exemption under section 30(c) of FOISA (substantial prejudice to the effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers and officials to be able to communicate, often in confidence, with other MSPs on a range of issues, including the discussions about the shared policy programme between the Scottish Government and the Green Party.

Disclosing the content of these communications, is likely to undermine trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. Stakeholders will be reluctant to provide their views fully and frankly if they believe that their views are likely to be made public, particularly as these discussions were of a sensitive political nature as part of a wider policy programme. This would significantly harm the Government’s ability to carry out many aspects of its work. Sharing the detail of a negotiation process could prejudice the ability of the Government to hold effective discussions in 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 Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s Cooperation Agreement with the Green Party, until the Government as a whole adopts a completed agreement. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence. Disclosure of draft agreements is likely to undermine the full and frank discussion of issues between the Scottish Government and stakeholders in future, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

The public interest was served by publishing the final document once agreement was reached and can be found at Scottish Government and Scottish Green Party Parliamentary Group: draft Cooperation Agreement - gov.scot (www.gov.scot).

38(1)(b) of FOISA

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 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.

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 - 202100243692 - Information Released - Annex A

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