Documentation regarding 2022 National Qualifications: FOI Review

Information requested

Original request - 202100231966
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 documents (such as advice, analysis, briefings, options documents etc) outlining / analysing / considering etc. the options available for national qualifications in 2022.

Date range 20/5/21 – present.

Review request - 202200312730
“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, the review of the FOI has now been completed.

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 has concluded that the original decision should be confirmed but with a number of important modifications. Specifically, in relation to several of the Enclosures within the Index of Enclosures, there is additional material now released following completion of the FOI review. The table at the front of the Index of Enclosures provides explanations for continued redaction of material, and for release of material. Items which are being released as a result of this review are marked in grey within the updated Index.

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

• Section 25 (1) which exempts information from disclosure where the requester can reasonably obtain the information without asking for it under FOISA.
• 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. I would classify the relevant email addresses as personal data. I 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 review have found that, on balance, the public interest lies 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 have concluded that some of the exemptions were applied appropriately, however the review also concluded that certain exemptions were not applied appropriately.

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 free and frank discussions on the handling of national qualifications in 2022 - would substantially inhibit discussions in the future. A 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 review was concluded that the time that has elapsed between initial FOI request and completion of this review is not a sufficiently significant amount of time to release Cabinet papers.

The more detailed reasoning in relation to information related to Cabinet papers is as follows:

• 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.

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 202200312730 - Information Released - Annex

File type

110 page PDF

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1.1 MB