ERDM folder dedicated to FOI 202100233415: FOI Release

Information requested

You asked for “1) The contents of the one ERDM folder dedicated to FOI 202100233415 which includes 53 items detailed in the response to FOI 202300363650.”

Response

I enclose a copy of some of the information you requested.

While our aim is to provide information whenever possible, in this instance we have redacted work and personal telephone numbers and the names and contact details of all staff below Senior Civil Service (SCS) level.

This is formal notification that we are unable to provide all of the information you have requested and 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. A further exemption applies where your name has been redacted under section 38(1)(a)’ which is not subject to the ‘public interest test’.

Some of the information you have requested is available to you as previous correspondence between yourself and the Scottish Government relating to FOI 202100233415, or online as the response to that request was published: Senior Civil Servant Staffing List and Register of Interests: 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 listed or correspondence previously sent / received, then please contact
me again and I will send you a paper copy.

The documents under this exemption are:

• The FOI request you made to Central Enquiry Unit – 25th August 2021 at 11:17 AM
• The automatic acknowledgement from MiCase sent to you – 25th August 2021 at 11:34 AM
• A letter of acknowledgment from Talent and SCS Development team sent to you – 27th August 2021
• A letter asking for clarity of your request from Talent and SCS Development team sent to you – 14th September 2021
• Your response to the clarity request to the from Talent and SCS Development team sent to you – 14th September 2021
• A letter to you apologising for not responding to the FOI request on time sent from the from Talent and SCS Development team – 22nd September 2021
• The final FOI response issued to you – 2nd June 2023
• The covering email to the Final FOI response issued to you – 2nd June 2023 10:34 AM
• The email to you providing the attachment from the response – 2nd June 2023 13:18 PM
• Database emailed to you on 2nd June 2023 and published on gov.scot 

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 and officials to be able to communicate with each other, receive advice from specialists (including the FOI Unit) and agree an approach to the handling of FOI requests before making a decision which is then communicated to the requester. Disclosing the content of these communications is likely to result in discussions about FOI handling being less detailed, which would diminish the quality of the advice provided to Ministers and officials.

This is particularly the case where the Scottish Information Commissioner is carrying out an investigation, or could still carry out an investigation into the handling of a request in accordance with section 47(1) of FOISA. It is for the Commissioner to decide whether authorities have dealt with requests in accordance with Part 1 of FOISA and he does so in light of the application for a decision made by the requester and any comments offered by the authority in accordance with section 49(3)(a) of FOISA.

It would substantially inhibit authorities’ ability to offer comments in support of their approach and to participate fully in the investigation if they were required to disclose the underlying advice on which that approach was based before the Commissioner has completed his investigation and reached a conclusion. Moreover, if the Commissioner requires an authority to issue a new review response as part of his decision, it would unduly constrain authorities’ ability to decide what that response should be (in light of the Commissioner’s decision) if they have already had to disclose the underlying advice on handling that they have received.

Taken together, we consider that disclosing the content of communications about the approach to the handling of FOI requests while there is an ongoing investigation by the Commissioner would be substantially prejudicial to the effective conduct of that investigation, and that this would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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. However, there is a greater public interest in ensuring that Ministers and officials are able to take advice on complex judgements around the release of material before making a decision which is communicated to the requester, and in ensuring that authorities are able to participate fully in the Commissioner’s investigation process.

Exemption under section 36(1) of FOISA also applies to some of the information you have requested.

Full documents and/or text in the information provided to you has been redacted as they are treated ‘Confidentiality in legal proceedings (covers legal advice)’. This exemption is also 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. However, there is a greater public interest in ensuring that Ministers and officials are able to take advice on complex judgements around the release of material before making a decision which is communicated to the requester.

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 202300368156 - Information Released - Annex

File type

46 page PDF

File size

575.7 kB