The Minister for Housing appearance on The Sunday Show on 05/11/23: FOI Review

Information requested

Original request 202300383734

'The briefings and documents provided to the Minister for Housing in preparation for his appearance on The Sunday Show on 05/11/23. Please also include all notes and correspondence to and from the Minister relating to preparations'.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for 'the briefings and documents provided to the Minister for Housing in preparation for his appearance on The Sunday Show on 05/11/23. Please also include all notes and correspondence to and from the Minister relating to preparations'.

I have concluded that, while elements of the original decision should be confirmed, a different decision should be substituted regarding some of the information that falls within the scope of your request.

In your request you raised concern regarding the use of exemption s.30(b)(i). I have reviewed the information that falls within the scope of your request and the application of s.30(b)(i) and have concluded that most of the information requested can be provided. I therefore enclose a copy of that information.

However, while our aim is to provide information whenever possible, I have confirmed that we are unable to provide some of the information you have requested because exemptions under FOISA sections s30(b)(i) (free and frank provision of advice) and 30(b)(ii) (free and frank exchange of views) apply. I have also identified information where exemption under FOISA s30(c) the effective conduct of public affairs applies. I have provided a rationale for that decision below. Personal data has also been redacted from the information provided in line with FOISA s.38(1)(b).

Exemption S30(b)(i) free and frank provision of advice applies to a very small amount of information requested because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemption recognises the need for Ministers to have a private space within which to seek advice from officials. Disclosing the content of free and frank advice provided to the Minister would substantially inhibit such briefing in the future, particularly because the provision of advice and discussions on some issues are still ongoing and final decisions may 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 position on media requests and communications until the Government as a whole can adopt a decision 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 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 decision making process, which would not be in the public interest.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to a very small amount of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on media requests and communications will substantially inhibit such discussions in the future, particularly because these types of discussions are regular and ongoing and may relate to current and sensitive issues, such as housing policy.

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 Ministers and officials a private space within which to explore and refine the Government’s position on media requests and communications in relation to live and sensitive issues until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good 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 decision making process, which would not be in the public interest.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. Disclosing this information would substantially prejudice our ability to conduct (i) First Minister’s Questions, because the requested information is live and used to prepare the First Minister to respond to questions raised as part of the First Minister’s Questions process or (ii) the formulation of policy lines to take, including in relation to the media, as Ministers require a private space within which to formulate lines in order to inform the public and the media of government policy positions. 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 protecting the process of First Ministers Questions and the formulation of policy lines and ensuring that the Scottish Government is able to conduct this aspect of its business effectively. The public interest is also in favour of allowing parliamentary processes to be conducted effectively to allow effective scrutiny of government.

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/contact details of individual, 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.

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 202300388177 - Information Released - Annex

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64 page PDF

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