NHS Recovery plan: FOI review

Information requested

All previous drafts and versions, in full, of the NHS Recovery Plan that are held by the Scottish government and all comments, emails, notes and other written information relating to these drafts.

Response

I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for all previous drafts and versions, in full, of the NHS Recovery 
Plan that are held by the Scottish government and all comments, emails, notes and other written information relating to these drafts.

In accordance with section 21(4) of FOISA, I have also reached a decision on your request. 

I apologise for the delay in responding to you. At the time of receiving the original request and request for review, the team were dealing with a high volume of work and, due to pressures from other core
business work, it has unfortunately taken longer than expected to finalise a response.

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

Some of the information you have requested is available at: NHS recovery plan - gov.scot (www.gov.scot).
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

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 exemptions under section 29(1)(a) (policy
formulation), sections 30(b)(i) and 30(b)(ii) (free and frank advice and exchange of views) 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 to this letter.

Annex A
REASONS FOR NOT PROVIDING INFORMATION

An exemption applies
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 some of the information requested because it is personal data of a third party, i.e. 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.

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 formulation of the Scottish
Government’s policy on NHS recovery.
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 NHS Recovery Plan 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 or other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on NHS recovery will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive or controversial 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 Ministers or other officials as part of the process of exploring and refining the Government’s policy on NHS recovery 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 policy-making process, which would not be in the public interest.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation 
An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the nformation 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 on NHS recovery will substantially inhibit such discussions in the future,
particularly because these discussions relate to a sensitive or controversial 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 Ministers and officials a private space within which to explore and refine the Government’s policy on NHS recovery 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 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.

FoI 202100251063 - Information released

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