Correspondence relating to Infected Blood Compensation or the Infected Blood Inquiry: FoI review

Information requested

“…copies of all correspondence relating to Infected Blood Compensation or the Infected Blood Inquiry second interim report sent to or received by the below persons (including any attachments) during the period 1st April 2023 - 6th June 2023.
1) John-Paul Marks (Permanent Secretary)
2) David Rogers (Director of Constitution and Cabinet).”

 

Response

You noted in your review request you did not wish to challenge the application of section 38, which I have understood to mean the exemption at 38(1)(b) applied to withhold personal data. Therefore, I have not reconsidered the application of this exemption. I have reconsidered the application of sections 29(1)(a) and section 30(b)(i) exemptions in the response we issued to your request. I have now completed my review of our response (202300360427) to that request under the Freedom of Information (Scotland) Act 2002 (FOISA).

I have concluded that some of the original decision should be confirmed, with modifications. I have set this out in more detail below:

I have overturned 7 instances of the application of a section 30(b)(i) exemption to some information on the grounds that releasing the information would inhibit government officials from providing free and frank advice;
 
I determined that, in these instances, the threshold in relation to this information to be exempted was unlikely to be met, in some instances because information withheld was now referred to in the public domain;

I have partially overturned 1 instance of application of section 29(1)(a) relating to the formulation of government policy, with some of the information withheld by those decisions now released – however, I have determined that the section 29(1)(a) exemption should still apply to some information withheld under that decision;

Whilst I note in your correspondence your view that in this instance the policy formulation process has concluded, the information withheld appears to set out detailed consideration of significant aspects of decision that the Scottish Government has yet to make. 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 high quality policy and decision-making, 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 infected blood compensation 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.

I have overturned 4 instances of the application of section 30(b)(i) and modified the decision to a section 28(1) exemption because the information held would be likely to substantially prejudice relations between the UK and Scottish Governments;

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information originally requested. This exemption applies because disclosure would, or would be likely to, prejudice
substantially relations between the Scottish Government and the UK Government. Disclosure of this information would reveal candid internal discussion about the other administration’s policies, with information shared in confidence with Scottish Government officials. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications
between the Scottish Government, the UK Government and the other devolved administrations. 

Disclosure of this information will mean that the UK Government are likely to be more reluctant to communicate as frequently and openly with the Scottish Government in future.
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 maintaining close working relationships between the Scottish Government and
the UK Government, and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, such as
infected blood compensation. There is no public interest in disclosing information when that will damage relationships and disrupt future communications as that may impact on the effectiveness of future policy development and implementation work.

I have upheld 4 instances of the application of section 30(b)(i) where the information held, if released, would be likely to inhibit the free and frank exchange of advice by government officials;

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested in your original correspondence. 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 infected blood compensation will substantially inhibit the provision of such advice in
the future, particularly because these discussions are still ongoing and decisions have not been taken. 

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 exploring and refining the Government’s policy position on infected blood compensation, until the Government as a whole can adopt a policy 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.

I have overturned one application of a section 30(b)(i) exemption and modified the decision to a section 36(1) exemption because the information contained constitutes legal advice;

An exemption under section 36(1) of FOISA 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. We recognise 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. The release of the content of such legal advice is likely to be
appropriate only in highly compelling cases. This has been recognised by both the Scottish Information Commissioner and the courts - see, for example, the House of Lords case, Three Rivers District
Council and others v Governor and Company of the Bank of England (2004) UKHL 48.

I have overturned the erroneous redaction of one piece of information that was not released due to a technical editing error.

The additional information released as a result of this review is now included in a revised release in the annex of this letter.

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 202300367507 - Annex A

File type

8 page PDF

File size

107.9 kB