Communications with Operation Branchform Mentions: FOI Review

Information requested

Original request - 202300367384

All emails sent or received by Scottish Ministers and/or Special Advisers containing the term “Branchform” or “Branch form”. Please provide the full contents of emails containing either of these terms dating back to 1 September 2022.

Response

I have completed my review of the response to your request (202300367384) under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

All emails sent or received by Scottish Ministers and/or Special Advisers containing the term “Branchform” or “Branch form”. Please provide the full contents of emails containing either of these terms dating back to 1 September 2022.

In your request for a review, you expressed dissatisfaction with the application of the following exemptions under FOISA:

1. Section 30(b)(i) (free and frank provision of advice) and section 30(b)(ii) (free and frank exchange of views for the purposes of deliberation) and the consideration of the public interest test with respect of these exemptions;
2. Section 30(c) (substantial prejudice to effective conduct of public affairs); and
3. Section 35(1)(a) (prevention or detection of crime)

In both our consideration of and response to your original request, and to your review request, in accordance with FOISA we have considered information which is held by the Scottish Government in relation to Operation Branchform.

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

In relation to the first part of your review request, I have carefully re-examined the information that has been withheld in accordance with sections 30(b)(i) (free and frank provision of advice) and section 30(b) (ii) (free and frank exchange of views for the purposes of deliberation), and the application of the public interest test in respect of that information.

In your original request you asked for “all emails sent or received by Scottish Ministers and/or Special Advisers containing the term “Branchform” or “Branch form” […]”. I consider that this includes within its scope advice provided to Ministers in their Government roles, and therefore the exemptions set out in section 30 of FOISA are relevant.

Taking these exemptions individually, the exemption in Section 30(b)(i) applies where disclosure would, or would be likely to, substantially inhibit the free and frank provision of advice.

Having re-examined the information that was withheld in the original response under the exemption in section 30(b)(i) I have concluded that some of this information was incorrectly withheld under the exemption. . I have therefore attached to this reply the information previously withheld.

The exemption in Section 30(b)(ii) applies where disclosure would, or would be likely to, substantially inhibit the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers to have a private space in which to seek the views and advice of officials before reaching a settled public position.

This exemption is subject to the public interest test. I recognise that there is public interest in the disclosure of information relating to the Government’s response to Operation Branchform as part of open, transparent and accountable government. There is also public interest in allowing a private space in which officials can deliberate and provide free and frank advice to Ministers, including in relation to the development of a public position.

Having re-examined the application of the exemption in Section 30(b)(ii) I consider that the public interest lies in favour of upholding the exemption. With respect to the information withheld in the original response under this exemption, I consider that the greater public interest lies in allowing a private space for officials to develop and provide advice to Ministers.

I have concluded that in respect of the first part of your review request, the original decision with regards to the application of the exemption under section 30(b)(i) should be substituted; I have further concluded that the original decision with regards to the application of the exemption under section 30(b)(ii) should be upheld.

The second part of your review request concerns the application of the exemption under Section 30(c) of FOISA, which applies if disclosure would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs.

Having carefully re-examined the original response I consider that the exemption under section 30(c) of FOISA has been incorrectly applied and the information withheld under this exemption should be disclosed. I have therefore attached to this reply the information previously withheld.

I have concluded that in respect of the second part of your review request the original decision should be substituted.

In relation to the third part of your request, I have re-examined the application of Section 35(1)(a) FOISA.

This exemption was applied with respect to some of the information that was withheld under the previous FOI responses that were linked in the original response.

This exemption is subject to the ‘public interest test’. While I recognise that there is some public interest in release of information which could provide insight into Police Scotland investigations, having reexamined the application of this exemption and noting that the Police investigation is still ongoing, I have concluded that there is a greater public interest in enabling Police Scotland to exercise their functions in relation to the prevention, detection or investigation of crime without those functions being prejudiced.

I consider that the original response could have set out more clearly that this exemption was applied in respect of FOI releases 202300351077 (available at https://www.gov.scot/publications/foi-202300351077/) and FOI release 202300353106 (available at https://www.gov.scot/publications/foi-202300353106/). We should have explained this to you in our response to your original request and I regret that we did not do so.

I have concluded that in respect of the third part of your review request, the application of the exemption in the original decision should be upheld.

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 - 202300374787 - Information released - Annex

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7 page PDF

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1.1 MB