Correspondence regarding Victims, Criminal Justice and Fatal Accident Inquiries (Scotland) Bill: FOI release

Information requested

1. Any analysis conducted by the Scottish Government of the Victims, Criminal Justice and Fatal Accident Inquiries (Scotland) Bill consultation. Please provide any analysis conducted after 14 December 2021 to the present date.

2. Any internal Scottish Government correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone calls, minutes of meetings, briefings or otherwise) regarding the Victims, Criminal Justice and Fatal Accident Inquiries (Scotland) Bill consultation including any internal correspondence from the Scottish Government developing responses to press releases from the Scottish Conservatives about the Victims, Criminal Justice and Fatal Accident Inquiries (Scotland) Bill. Please provide any correspondence which took place 14 December 2021 to the present date.

3. Any briefing notes provided to any Scottish Ministers regarding the Victims, Criminal Justice and Fatal Accident Inquiries (Scotland) Bill consultation. Please provide any briefing notes given to Scottish Ministers after 14 December 2021 to the present date.

4. Any emails, whatsapp messages or other instant messaging services (including text messages) from Cabinet Secretary for Justice Keith Brown regarding the Victims, Criminal Justice and Fatal Accident Inquiries (Scotland) Bill consultation. Please provide emails and messages from 14 December 2021 to the present date.

Response

I attach a copy of some of the information you requested.

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 sections: s.29(1)(a) (policy formulation); s.30(b)(i) (substantial inhibition of free and frank provision of advice) s.30(b)(ii) (substantial inhibition of free and frank exchange of views for the purposes of deliberation); s.36(1) (claim to confidentiality of communications); and s.38(1)(b) (personal information)] of FOISA applies to that information. The reasons why these exemption) apply are explained below.

s.29(1)(a) of FOISA (policy formulation)
An exemption under section s.29(1)(a) of FOISA (policy formulation) applies to some of the information you have requested as it covers initial development of the Government’s policy position on the proposals contained in the consultation.

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 some public interest in release because of open and transparent Government. However, this is outweighed by the public interest in the need for private space to discuss and formulate Government policy.

30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views)
Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) applies to some of the information requested. These exemptions apply 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 will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken.

These exemptions are 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 these exemptions. We have found that, on balance, the public interest lies in favour of upholding these exemptions. 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 proposals in the consultation. 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.

36(1) of FOISA (confidentiality in legal proceedings)
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, 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 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.

38(1)(b) of FOISA (personal information)
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. the names/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 - 202200284394 - Information Released - Annex

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32 page PDF

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1.9 MB