Children's health and wellbeing census 21/22: FOI Review

Information requested

1. What age children are targeted by the census?
2. A full copy of the census.
3. A copy of the ministerial sign-off of the census.
4. A copy of senior civil service sign-off of the census.
5. A copy of the data privacy risk assessment for the census.
6. All communications with the FM and DFM on the subject of the census.
7. The precise purpose and reasoning for each question in the census – and how they relate to the provision of public services.
8. An impact assessment of completing the census on childrens immediate wellbeing.
9. All assessments on how children's anonymity will be guaranteed 100%
10. How will data quality be assessed to overcome disclosure bias (false answers)?
11. How will data quality be assessed given there is opt-out (incomplete population)?
12. Who will have access to the children's completed census forms?
     

Response

Further to our response dated 22 December to your original request of 4 December, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) where you asked a series of questions, and for information, about the Health and Wellbeing Census.

I have concluded that the original decision should be confirmed, with modifications.

The exemptions that were applied were not set out properly in the original response, dated 22 December. I have noted that in PDF attachment referenced ‘202100260600 Index of Enclosures’ it sets out a description of the enclosure, the date, an explanation of redaction and the relevant clause. However, the exemptions should have been set out in the response letter along with the reasons as to why they applied and a clear application of the public interest test where appropriate.

I have concluded that the decision to apply Section 38(1)(b) exemption in respect of the names of the individuals involved in the submissions and responses provided to Ministers, Enclosures 1-14 in the PDF document 202100260600, was applied correctly as it is standard practice within the Scottish Government only to release the names of those officials who are Senior Civil Servants. None of the Government officials involved in the submissions and responses to Ministers are Senior Civil Servants and therefore have an expectation of privacy. In addition, given the high profile media coverage of the census, the emotive issues involved and the strong and inflammatory language that has been used by some publicly and in the media, there is a concern that putting the names of the Government officials into the public domain could “cause the employee harm or distress, for example by exposing them to threats or reprisals”, as per paragraph 68 (2nd bullet) and paragraph 84 of the FOISA guidance on the application of Section 38.

In reaching this conclusion, I considered the public interest in releasing the names of Government officials. For the reasons set out above, I concluded that there was not a legitimate interest in releasing the names.

I have found that exemption Section 29(1)(c) was applied in error to Enclosure 1 and Enclosure 13.

Having reconsidered Enclosure 1 I have concluded that an exemption under section 36(1) of FOISA applies to some of the information you have requested that is contained in this enclosure. An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies 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, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

Having reconsidered Enclosure 13 I have concluded that an exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested in this enclosure. This exemption applies because revealing the source of the Scottish Government’s legal advice on contracts and data processing, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on the Health and Wellbeing Census. 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, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

An exemption under section 30(b)(i) exemption in respect of some of the information contained in Enclosures 2, 9, 10,13 and 14 applies because it is likely that disclosure would likely inhibit substantially the free and frank provision of advice. This exemption recognises the need for Ministers to have a private space within which to seek free and frank advice from officials before the Scottish Government reaches a settled view. Disclosing the content of free and frank advice on sensitive issues in order to inform appropriate decision making will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive and controversial issue.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 to other officials, as part of the process of exploring and refining the Government’s position. 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. Disclosure is likely to undermine the full and frank discussion of issues, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

I have concluded that the decision to apply section 30(b)(i) exemptions in respect of Enclosure 10, was incorrect. I have reconsidered and have upheld the application of s30(a) (convention of collective responsibility of Scottish Ministers) to two letters in this enclosure. This exemption applies because disclosure would, or would be likely to, prejudice substantially the convention of the collective responsibility of Scottish Ministers for the Scottish Government’s policy on the Health and Wellbeing Census. Government in Scotland, as in the rest of the UK, has long worked under the convention that Ministers are collectively responsible for policy/decisions and its delivery. Collective responsibility requires collective discretion, and ensures that Ministers can express their views frankly in internal discussion of an issue while maintaining a united front once decisions have been reached. Disclosing communications between individual Ministers would prejudice substantially the maintenance of the convention.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 maintaining collective responsibility for the Scottish Government’s policy on the Health and Wellbeing Census, once a settled policy position has been reached. Disclosure of these internal discussions between Ministers would be likely to have the effect of undermining the Government’s position on the Health and Wellbeing Census, and thus the effectiveness of the policy, which would not be in the public interest.

I have also concluded and applied section 29(1)(b) to the same two letters because it relates to communications between Scottish Ministers.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 a private space within which issues can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good decisions in relation to issues which may be sensitive in nature can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process.

I have concluded that some information in enclosures 13 and 14 was incorrectly withheld under section 33(1)(b) (commercial interests and the economy). I have released some of that information here, and have substituted section 30(b)(i) (substantial prejudice to the provision of free and frank advice) to the remainder of that information for the same reasons as explained above.

Exemptions for some of the information contained in Enclosures 2, 9 and 14 under section 30(b)(i) have been applied incorrectly. I have concluded that this information should be released, and have included it with my response.

About FOI

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FOI 202200270559 - Information released

File type

81 page PDF

File size

1.4 MB