FM meetings: FOI Review

Information requested

You requested a review stating the following:

“I am writing to you to request an internal review of this decision. I do not believe the exemptions apply to all the information, particularly the briefing documents, and
have been applied far too liberally. In any case, the public interest is in favour of disclosure.”

Response

Further to our letter of 20 June 2023, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

“All internal and external correspondence within and sent or received by the Scottish Government including attached documents, meeting handouts, memos, briefings to ministers, attendee lists, location of meeting, notes, minutes, or OneNote memos, linked to the following meetings:
1a) Nicola Sturgeon's meeting with COSLA and trade unions on September 1, 2022
1b) Nicola Sturgeon's meeting with King Charles III on September 12, 2022
1c) Nicola Sturgeon's meeting with Mark Kent of the Scotch Whisky Association on September 26, 2022
1d) Nicola Sturgeon's meeting with Mark Drakeford on September 27, 2022.”

Please accept my apologies for the delay in getting this response to you. The review of the information took longer than anticipated.

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

Part 1a) Nicola Sturgeon’s meeting with COSLA and trade unions on 1 September 2020. 

In relation to 1a, while our aim is to provide information whenever possible, in this instance we are only able to provide a some information regarding the meeting between the Former First Minister, Nicola
Sturgeon and COSLA and Trade Unions on 1 September 2020. The information is contained in the annex with modifications. The explanation of exemptions used are outlined below.

Section 25(1) – Information otherwise Accessible
Some of the information you have requested is publicly available from Nicola Sturgeon and Council meetings: FOI release - gov.scot (www.gov.scot).

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.

Section 30(b)(i) – free and frank provision of advice
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information 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 before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on commercial interests will substantially inhibit the provision of such advice in the future, particularly because these discussions are ongoing and includes sensitive commercial information.

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, as part of the process of to refine the Government’s position on local government pay.

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. 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.

Section 30(c) – substantial prejudice to the effective conduct of public affairs
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers to be able to meet, often in confidence, with external stakeholders on a range of issues, including local government pay negotiations.

Disclosing the information about these meetings, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future.

These stakeholders will be reluctant to participate in meetings and provide their views fully and frankly if they believe that their views are likely to be made public, particularly while discussions are still ongoing for this financial year’s pay negotiations and decisions have not been taken. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions for future pay negotiations.

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 Ministers and officials a private space within which to communicate and meet with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on local government pay, until the Government as a whole can adopt a decision that is sound and likely to be effective.

This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, such as that provided by COSLA and Trade Unions. Disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

1b) Nicola Sturgeon’s meeting with King Charles lll on 12 September 2022

On part 1b of your original request, I am upholding the original decision of applying section 41(a) (communications with His Majesty, other members of the Royal family or Royal household). Section 41(a) – communications with His Majesty, the Royal Family or the Royal Household.

An exemption under section 41(a) of FOISA (communications with His Majesty, etc.) applies to all of the information requested because it relates to communications with His Majesty, King Charles lll.

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. However, this is outweighed by the greater public interest in maintaining the long-standing constitutional Convention that correspondence between The Sovereign and the government is confidential in nature. This Convention is an adjunct of the right of The Sovereign to be consulted by His Government, and to advise, encourage and to warn as the circumstances require. The rights of The Sovereign could not be exercised effectively without this expectation of confidentiality and, if the content of these consultations became known, it may serve to undermine the appearance of the political neutrality of The Sovereign.

1c) Nicola Sturgeon’s meeting with Mark Kent of the Scotch Whisky Association on 26 September 2022

In relation to 1c I am now including a copy of the briefing note for the meeting, with exemptions applied, in the Annex. This should have been released in the initial release however was not, due to an administration error, I apologise for this.

Section 30(b)(i) – free and frank provision of advice
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information 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 before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on commercial interests will substantially inhibit the provision of such advice in the future, particularly because these discussions are ongoing and includes sensitive commercial information.

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 nterest 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, as part of the process of exploring and refining the Government’s alcohol and trade policy position.

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. 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.

Section 38(1)(b) – applicant has asked for personal data of a third party
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, 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.

1d) Nicola Sturgeon’s meeting with Mark Drakeford on 27 September 2022
On part 1d I confirm the original decision, with modifications. While our aim is to provide information whenever possible, in this instance we are only able to provide some of the information requested, which is in the Annex.

While our aim is to provide information wherever possible, we are unable to provide some of the information because the following exemptions of FOISA apply to the information: Section 25(1) – Information otherwise Accessible

Some of the information you have requested is publicly available from Ministerial engagements, travel and gifts - gov.scot (www.gov.scot) . 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 listed, then please contact me again and I will send you a paper copy.

Section 28(1) – relations within the United Kingdom
An exemption under section 28(1) of FOISA (relations within the United Kingdom) applies to some of the information requested because it relates to relationships with another UK administration.

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 Ministers a private space within which policy positions between UK administrations can be explored. To release this information would prejudice relations between administrations.

Section 38(1)(b) – applicant has asked for personal data of a third party
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, 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.

Annex

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PDF

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1.4 MB