Correspondence regarding 2022 school examinations: FOI Review

Information requested

Original request - 202100231963
"The Scottish Government has today confirmed that exams will take place in 2022 (if safe to do so) - https://www.gov.scot/news/national-qualifications-2022/. Please release any internal communication between the Scottish Government members and staff (first minister, education secretary, special advisers, learning directorate staff) regarding National Qualifications in 2022. Email attachments should be included. Non-email messages should also be released, including but not limited to messaging services such as WhatsApp etc. Date range: 20/5/21 – present".

Review request - 202200312728
“I would like each instance of all exemptions to be checked because it seems to clear to make that they have, at numerous points, been applied speculatively, inconsistently and, ultimately, incorrectly.

I also note that no explanation has been offered to me to explain the government’s failure to respond to these requests within the legally required twenty working days deadline I expect each review to include this explanation (which is presumably specific to each individual case), in part so that it can then all be provided to the Scottish Information Commissioner when I send these cases for a review at that stage.”

Response

Further to my letter of 19 August 2022, I have now completed my review of the FOI.

Once again, I pass on my apologies for the significant delay in completing this FOI review. As outlined in my holding response of 19 August, there were initial delays in extracting an un-redacted version of the relevant material. Following the extraction of the relevant material, there were then further delays in reviewing the information. Wider work pressures and the fact that officials were dealing with two additional FOI reviews limited the time that was available to focus on this FOI review. The FOI review has now been completed and this letter provides the conclusions from the review.

Your request for an FOI review stated the following:

“I would like each instance of all exemptions to be checked because it seems to clear to make that they have, at numerous points, been applied speculatively, inconsistently and, ultimately, incorrectly.

I also note that no explanation has been offered to me to explain the government’s failure to respond to these requests within the legally required twenty working days deadline I expect each review to include this explanation (which is presumably specific to each individual case), in part so that it can then all be provided to the Scottish Information Commissioner when I send these cases for a review at that stage.”

My response below deals with each of your two requests: first, your request for an explanation to explain the government’s failure to response to the initial FOI request within the twenty working days deadline, and; second, your request that the government review the exemptions applied.

Delay in responding to your initial FOI request
There has been a significant amount of interest in decisions taken around the assessment of National Qualifications in 2021 and 2022 and in related issues. This increased demand on the team who was dealing with these issues, both in relation to a significant number of Freedom of Information requests being submitted as well as crucial policy development work. These pressures occurred over a period of time when there was reduced resources within the team and several staff changes which caused issues in terms of continuity and efficiency of processing FOI requests.

The information requested the FOI request was of a complexity and sensitivity which required input from a number of teams, and required review by a limited number of senior policy officials with knowledge of the specific sensitivities who also had significant competing priorities for their time. A large amount of time was required to ensure that a comprehensive record of information was provided to the correspondent.

In undertaking this FOI Review, I met with the policy team who handled the initial response and they confirmed that there were a number of reasons behind the initial delay, three reasons in particular:
a) the volume of other FOI requests which had to be handled by the team at the time of the initial request;
b) the volume of core policy work which the team had to undertake in the initial few months and then into 2022, and;
c) the volume of documents, emails and papers included in the release.

Although this provides an explanation for the delay, it was not appropriate to delay the response for such a significant amount of time, and I would like to pass on apologies on behalf of the organisation for the delay in providing the initial response. Officials are working to improve processes and learn lessons to ensure that a more effective service is provided in future.

Review of our response to your request
In relation to the second aspect of your request (i.e. your request for a review of the material withheld from the initial request) the review concluded that the original decision should be confirmed but with a number of important modifications.

In relation to the exemptions applied to the initial release, the various exemptions fell into the following four categories:

• Sections 29(1)(b) (Ministerial communications), in particular that premature disclosure would be likely to undermine the full and frank discussion of issues between Ministers, which in turn would undermine the quality of the policy making process.
• Section 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), in particular in relation to Cabinet Papers are not disclosed until a significant amount of time has elapsed.
• Section 36(1) (confidentiality in legal proceedings)
• Section 38(1)(b) (personal information)

The review concluded that all exemptions under Section 38 (1) (b) (personal information) were applied appropriately. The names and email addresses of junior officials and members of staff were exempted from release in an appropriate and accurate way. The relevant email addresses are classified as personal data and therefore the review concluded that the continued redaction of those individuals’ names and email addresses would have no material effect on the substantive items for release.

The review concluded that the exemptions under Section 36 (1) (confidentiality in legal proceedings) were applied appropriately. As set out in the initial response, this exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, the review considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. The view concluded that, on balance, the public interest lay in favour of upholding the exemption. It is recognised 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.

In relation to the exemptions applied under Section 30 (b) (ii) (free and frank exchange of views for the purposes of deliberation), the review concluded that some of the exemptions were applied appropriately, however it also concluded that certain exemptions were not applied appropriately. In certain instances, it was concluded that the relevant information no longer forms part of the decision-making process in question and therefore can now be released.

In all remaining instances, the review concluded that the relevant items of information continue to be exempted from release as the information is free and frank exchange of views for the purposes of deliberation, and release of the relevant information could still impact on decision-making in relation to current examination processes. 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. In relation to the relevant items, it was concluded that disclosing the content – which related to discussions on the handling of national qualifications in 2022 - would substantially inhibit discussions in the future. A very specific circumstance in this respect is that fact that the relevant discussions are still relevant to decisions still to be taken on the exam diet in 2023, which continues to be impacted by the pandemic.

In relation to material relating to Cabinet Papers, the review concluded that the relevant items of information should continue to be exempted from release. The reasoning behind this are the same as in the initial FOI response, namely the following:

• Paragraph 2.1 of the Scottish Ministerial Code provides that "the privacy of opinions expressed and advice offered within the Government should be maintained" at all times. Cabinet papers are essential elements which support and assist collective discussion in the private space which Ministers need to reach agreed positions.
• The weekly meeting of the Scottish Cabinet is the highest decision-making forum within the Scottish Government, and it follows that all information considered by Cabinet must be handled with great care.
• Properly functioning Cabinet processes are generally recognised to be of vital public interest: Cabinet government is based on the principle of collective responsibility, which the Scottish Ministerial Code defines in the following terms: "The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Government should be maintained. … The internal processes through which a Government decision has been made should not normally be disclosed." (Scottish Ministerial Code, 2018 edition, paragraphs 2.1 and 2.4)
• Cabinet papers are invariably produced on the assumption that they will not be disclosed until a significant amount of time has elapsed.

In considering this particular matter of Cabinet Papers, the review was concluded that one calendar year is not a sufficiently significant amount of time to release Cabinet papers.

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 202200312728 - Information Released - Annex

File type

121 page PDF

File size

1.9 MB