Briefing notes prepared for Criminal Justice Committee September 2021: FOI review

Information requested

Your request, reference 202100236359
Full content of all briefing notes, papers etc providing to the Cabinet secretary for Justice and Veterans and the minister for Community Safety in respect of their appearance before the Criminal Justice Committee of the Scottish Parliament on 1 September 2021.

Your review request, reference 202100245911
I note that you have requested a review on the basis that the letter dated 5 October 2021 in response to your request fails to comply with the requirements of the Freedom of Information (Scotland) Act 2002 for the below noted reasons, which have been outlined by you as stated below.

The letter of 7 October 2021 sets out that the Scottish Ministers have concluded that the public interest in maintaining the exemption outweighs the public interest in disclosure in respect of some of the information. This does not comply with the statute in respect of refusal notices. The relevant requirement is section 16(2) of the Freedom of Information (Scotland) Act 2002, which requires that a Scottish public authority, when relying upon a qualified exemption, to “state the authority’s reason for claiming that, in all the circumstances of the case, the public interest in maintaining the exemption outweighs that in disclosure of the information”. This requires the Scottish Ministers not only to state that they have concluded that the public interest in maintaining the exemption outweighs the public interest in disclosure but to set out its reasons as to why it has so concluded. This represents a clear failure to comply with the requirements of Part 1 of the Freedom of Information (Scotland) Act 2002.

Furthermore, the failure to comply with section 16(2) of the Freedom of Information (Scotland) Act 2002 means that the Scottish Ministers have failed to give adequate and proper reasons for their decision; this is because there is a positive statutory obligation on them to provide reasons and they have failed to do so. The decision letter is therefore vitiated by procedural unfairness.

I also wish the Scottish Government to revisit the decision to withhold the information that it has. It is impossible for me to make any argument in support of that request due to the technical failure identified above; this is because I have not been supplied with the reasoning and therefore cannot make any challenge to it. The only additional comment that I can make is that the absence of any reasoning in respect of why the Scottish Government has reached the conclusion that it has would tend to suggest that the Scottish Government may not have properly applied its mind to the question of the public interest.

Response

I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response. I acknowledge that your original request was not responded to within the statutory time period. I apologise for this oversight. I accept that regrettably we have not complied with our obligations under FOISA to respond within 20 working days to either your initial request or your request for review. This was due to the volume of material to be reviewed for release.

I have concluded that a different decision should be substituted.

I have undertaken an extensive review of the information previously withheld in this case and have determined that most that information can now be disclosed. I have enclosed a copy of the following information:
1) Long briefing (redacted)
2) Short briefing – Cabinet Secretary (redacted)
3) Short Briefing for the Minister for Community Safety (redacted)
4) Additional lines (unredacted)

I am satisfied that an exemption under section 30(b)(i) (free and frank advice) continues to apply to a small amount of information redacted from documents 1-4 noted above. In addition, I have determined that an exemption under section 29(1)(a) (policy development) and section 30 (c) (effective conduct of public affairs) also applies to some of the information you have requested.

I acknowledge that our response could have set out in more detail the reasons why the exemption under section 30(b)(i) was applied and that it should have set out the public interest factors considered in this instance. I have therefore set out the reasons where the exemptions under section 30(b)(i) (free and frank advice), 30 (c) (prejudicial to the effective conduct of public affairs) and section 29(1)(a) (policy development) apply in the Annex A. 

Annex A
Briefing notes attached
1) Long briefing (redacted)
2) Short briefing – Cabinet Secretary (redacted)
3) Short Briefing for the Minister for Community Safety (redacted)
4) Additional lines (unredacted)

Exemptions
It is important to note that the information contained within the briefings was provided to Ministers to assist with their preparations and provide them with advice on key issues. It remains the decision of the Ministers as to how and when they use any information provided to them by officials.

REASONS FOR NOT PROVIDING INFORMATION

An exemption applies, subject to the public interest test

Section 29(1)(a) – formulation or development of government policy
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 the various issues contained within the briefing note.

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 the policy areas within the briefing document 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.

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 Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the policy issues contained within the briefing document will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken. 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 as part of the process of exploring and refining the Government’s position on the various justice issues 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 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 decision making process, which would not be in the public interest.

Section 30(c) – substantial prejudice to the effective conduct of public affairs
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. Disclosing this information would substantially prejudice our ability to conduct Ministerial appearances before Committees because it would affect the ability of officials to provide effective briefings to Ministers on sensitive matters, interfering with the pre-Committee preparation. It would therefore be prejudicial to disclose this information.

This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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. However, there is a greater public interest in protecting the process of Committee appearances and ensuring that the Scottish Government is able conduct this aspect of its business effectively.

Briefing title	Reason sections withheld
Cabinet Secretary briefing topics	30(b)(i) – Free and frank provision of advice 29(1)(a) Development of Policy 30(c) – Prejudicial to the effective conduct of public affairs
LONG Briefing	30(b)(i) – Free and frank provision of advice 29(1)(a) Development of Policy
SHORT Briefing for the Cabinet Secretary	30(b)(i) – Free and frank provision of advice 29(1)(a) Development of Policy
SHORT Briefing for the Minister for Community Safety	30(b)(i) – Free and frank provision of advice 29(1)(a) Development of Policy
Briefing entitled Final Two topics	30(c) – Prejudicial to the effective conduct of public affairs

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.

FOI202100245911 - Annex A

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