Correspondence regarding specific convicted criminal: FOI release

Information requested

1. All correspondence received and sent by the Scottish Government mentioning the convicted criminal Andrew Miller between February 1 2023 and the date of this FOI

2. All briefing notes for ministers drafted mentioning Andrew Miller between the same dates.

Response

I enclose a copy of some information requested.

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 30(b) (i) and 30(b)(ii), 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, i.e. 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.

Exemptions under section 30 (b)(i) and section 30 (b)(ii) of FOISA (free and frank provision of advice and exchange of views for the purposes of deliberation) applies to some of the information you have requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. The exemptions recognise the need for officials to have a private space within which to provide free and frank advice to both other government officials and Ministers when discussing SPS policy relating to the management of transgender prisoners.

The above exemptions are subject to the ‘public interest test’. Therefore, taking account of all of the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions. We have found that, on balance, the public interest lies in favour of upholding the 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, to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. 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.

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, although we 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 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.

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 202300365039 - Information released - Attachments

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40 page PDF

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552.0 kB