Correspondence relating to Infected Blood Compensation: FOI Review

Information requested

Original request - 202300374927

Copies of all e-mail correspondence (including any attachments) relating to Infected Blood Compensation sent to or by staff working in Blood Donation and Abortion Policy during the period 30th August 2023 - 6th September 2023.

Response

Further to my letter of 13 November 2023, I have now completed my review of our response to your request on 7 September 2023 under the Freedom of Information (Scotland) Act 2002 (FOISA) for 'copies of all e-mail correspondence (including any attachments) relating to Infected Blood Compensation sent to or by staff working in Blood Donation and Abortion Policy during the period 30th August 2023 - 6th September 2023.'

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

Specifically, you requested a review of the application of the following exemptions as they applied to material withheld in response to your original request:

• 28(1) (Relations with the United Kingdom)
• 29(1)(a) (Formulation or development of Scottish Government policy)
• 30(c) (The effective conduct of public affairs)
• 36(1) (Legal advice)

You also provided further detail on your view as to how these exemptions have been applied, and argued that the public interest lay in favour of releasing correspondence withheld and/or redacted in response to your request.

Release of information

On review of this case I have found that a small amount of further correspondence should be released, where an exemption had been applied. This is part of an redacted document already provided to you in our original response. I have included this information in full in the Annex to this letter.

Application of FOISA exemptions

Turning to your substantive points made in your review request I have set out below my response to you on each exemption, as they were applied to this case.

28(1) Relations within the United Kingdom

I have considered the information in scope to your request and the corresponding application of section 28(1) to the relevant parts of that correspondence.

Fully taking account of Scottish Information Commissioner guidance on the application and considerations required for this FOISA exemption I am satisfied that the exemption applies and that, on balance, the public interest lies in favour of upholding the exemption.

As highlighted in Annex A of our response to you on 3 October 2023 this exemption applies because it relates to the formulation or development of government policy. In this case, in relation to infected blood compensation policy.

This exemption is subject to the ‘public interest test’. As already noted in our October response, we recognise the continuing requirement and desirability to conduct Government business in an open,  transparent manner and this remains an important factor in our FOISA obligations. However, this must be balanced against a strong public interest in maintaining a private space in which both officials and Ministers are able to consider information and evidence available before reaching a settled public policy position.

29(1)(a) Formulation or development of government policy

I have considered the information in scope to your request and the corresponding application of section 29(1)(a) to the relevant parts of the correspondence.

Fully taking account of Scottish Information Commissioner guidance on the application and considerations required for this FOISA exemption I am satisfied that the exemption applies and that, on balance, the public interest lies in favour of upholding the exemption.

As highlighted in Annex A of our response to you on 3 October 2023 this exemption applies because it relates to the formulation or development of government policy. In this case, in relation to infected blood compensation policy.

This exemption is subject to the ‘public interest test’. As already noted in our October response, we recognise the continuing requirement and desirability to conduct Government business in an open, transparent manner and this remains an important factor in our FOISA obligations. However, this must be balanced against a strong public interest in maintaining a private space in which both officials and Ministers are able to consider information and evidence available before reaching a settled public policy position.

30(c) Prejudice to effective conduct of public affairs

I have considered the information in scope to your request and the corresponding application of section 30(c) to the relevant parts of the correspondence. 

Fully taking account of Scottish Information Commissioner guidance on the application and considerations required for this FOISA exemption I have reconsidered the application of this exemption to the information to which it has been applied.

On review, I have determined that section 30(c) was not the appropriate exemption, where it was applied, and I am withdrawing our reliance on this exemption as a result.

I have instead reconsidered this information in the circumstances of this case and determined that section 30(b)(i) should instead apply in the relevant sections in this case. 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 both Ministers and other officials, before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on policy, in this case relating to infected blood and associated compensation, will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not yet been taken. 

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying 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.

36(1) Confidentiality

I have considered the information in scope to your request and the corresponding application of section 36(1) to the relevant parts of the correspondence.

Fully taking account of Scottish Information Commissioner guidance on the application and considerations required for this FOISA exemption I am satisfied that the exemption applies and that, on balance, the public interest lies in favour of upholding the exemption.

As highlighted in Annex A of our response to you on 3 October 2023 this exemption applies because it relates to correspondence which is legal professional privilege between a client and legal adviser.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. As already noted in our October response, we recognise the continuing requirement and desirability to conduct Government business in an open, transparent manner and this remains an important factor in our FOISA obligations. 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.

Public interest test

More broadly you set out in your review request your view that, on balance, the public interest favours release of information which had been withheld under FOISA and the above exemptions. As highlighted above, I have considered the exemptions and public interest tests applied to this case.

I noted as part of my consideration that section 1(1) of FOISA sets out that a person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

As Scottish Information Commissioner guidance highlights, this right is not absolute. In some cases, information is exempt from disclosure and most of these exemptions are subject to the public interest test ("qualified exemptions"). Where a qualified exemption applies, the information must be disclosed unless the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.

Guidance as provided by the Scottish Information Commissioner sets out that FOISA does not define the public interest test. However, this guidance notes that the public interest test has ‘been described elsewhere as ‘something which is of serious concern and benefit to the public’ and ‘not merely something of individual interest’. This guidance notes that the public interest in the context of FOISA is something that is “in the interest of the public”, not merely “of interest to the public.” The guidance summarises this point by stating ‘in other words, it serves the interests of the public.'

FOISA exemptions are considered on a case-by-case basis, dependent on a variety of factors including the time and context at which information is considered for release. This distinction in understanding the application of the public interest test as above is important when considering the circumstances of this case.

In this case and the information to which the exemption applies, there has remained a strong public interest in upholding the applicable exemptions. As highlighted in our original response to you, it is important that Scottish Government is able to freely exchange and provide frank views on what remains a developing government policy position with regards to infected blood policy across various avenues including internal briefing, legal professional privilege between a client and legal adviser, Scottish Ministers, UK administrations and other stakeholders as proportionate to statutory obligations under FOISA.

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 - 202300384592 - Information released - Annex

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