Publication - FOI/EIR release

Correspondence relating to Transgender Prisoners: FOI Review

Published: 5 June 2023
Directorate: Justice Directorate
Topic: Equality and rights, Law and order, Public sector
FOI reference: FOI/202300353625 Review of 202300341318
Date received: 12 March 2023
Date responded: 1 June 2023

Information request and response under the Freedom of Information (Scotland) Act 2002

Information requested

“Can you please provide ALL communications, including emails, between any member of the Scottish Government and any member of the Scottish Prison Service, in relation to any or all transgender prisoners, between 10-Jan-2023 and 02-Feb-2023.”

Response

I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) as on 02 February 2023 for:

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

Firstly, I would like to apologise for the delays experienced both in regard to the original request and your request for review, dated 20 March 2023. The team responsible for preparing the response to your request received a high volume of requests at the same time and detailed consideration was required to be given to identify the most appropriate approach to completing these. Mitigation measures were put in place with to assist in processing this volume of information, including additional staffing resources being made available, however this was not sufficient to meet the deadline in the case of your response.

I can now provide our response to your original request.

Response to your request:

I attach a copy of some the information you requested as Annex A-B and Attachments to Annex. Some information has been provided in the form of an extract because the remainder of the information in that document does not fall within the scope of the request.

Whilst 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 38(1)(b), section 29(1)(a), Section 30(b)(i) and 30(b)(ii), section 25(1) and section 36(1) of FOISA applies to elements of the correspondence you requested. The reasons why these apply are explained below-

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, ie 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 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 and development of policy on management of transgender prisoners.

This exemption is subject to the ‘public interest test’. We looked at different stages in the policy development. In this case, a distinct and active phase of the current policy development started in January 2023 as a response to public concern around circumstances of an individual case and then a recognition that this phase will impact the ongoing wider Gender Recognition Policy Review by SPS which though is in its final stages but will take into considerations the lessons learnt review undertaken during this period.

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 decisionmaking, 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 matters relating to this policy review 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. While disclosure could contribute to debate on a matter of public interest, the exemption is upheld due to the sensitive nature of formulation of that policy and its interaction with personal information. As well as the need to ensure that wherever possible individual's rights are protected, and to ensure policy can be developed in a rigorous manner, the policy and information requested relates significantly to an individual case which adds weight to concluding that the exemption should be upheld.

An exemption under section 30(b)(i) (Free and frank provision of advice) of FOISA applies to some of the information you have 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 and other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on transgender prisoners issue will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive or controversial issue of policy around management of Transgender prisoners.

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 and other officials as part of the process of exploring and refining the Government’s policy position on management of transgender prisoners until the Government as a whole can adopt a decision 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 policy 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.

An exemption under section 30(b)(ii) (free and frank exchange of views for the purpose of deliberation) of FOISA applies to some the information you have requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purpose of deliberation. 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 free and frank views before the Scottish Government reaches a settled public view. Disclosing the content of such free and frank exchange of views will substantially inhibit the communication of such matters in the future, which would not be in the public interest. As an individual case is a key starting point around the consideration of advice, the balance of the assessment around this is weighted even more in favour of withholding the information.

An exemption under section 36(1) of FOISA (confidentiality of communications) 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. recognise that there is some public interest in release as part of open and transparent government, and to inform the 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.

Some of the information requested under this request relates to Gender Identity and Reassignment Policy 2014 which is currently under review. The interim measures announced on 09 Feb 2023 - Recommendations - Transgender prisoner management: urgent case review correspondence - gov.scot(www.gov.scot) will remain in place pending the outcome of the policy review. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

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.