Management of Transgender People in Custody policy: FOI release

Information requested

1. Please provide all correspondence and meeting details between Scottish Government and the Scottish Prison Service in relation to the most recent version of the Management of Transgender People in Custody policy (2023).
2. Please also provide any correspondence and meeting details the Scottish government has had with Engender or any other third parties in relation to the most recent version of the Management of Transgender People in Custody policy (2023).

Response

Whilst our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under section 38(1)(b), section 30(b) (i) and 30(b)(ii), section 36(1), section 25(1), section 27(1)(a)(i) and section 29(1)(a) of FOISA apply to elements of the correspondence you requested. The reasons why these apply are explained below.

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 and contact details of individuals, 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.

Exemptions under section 30(b)(i) and section 30(b)(ii) of FOISA (free and frank provision of advice and exchange of views for the purposes of deliberation) applies to some of the information you have requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. The exemptions recognise the need for officials to have a private space within which to provide free and frank advice to both other government officials and Ministers when discussing SPS policy relating to the management of transgender prisoners.

The above exemptions are subject to the ‘public interest test’. Therefore, taking account of all of the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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, to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Disclosing the content of such free and frank exchange of views will substantially inhibit the communication of such matters in the future, which would not be in the public interest.

An exemption under section 36(1) of FOISA (confidentiality of communications) 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, although we recognise that there is some public interest in release as part of open and transparent government, and to inform the 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.

An exemption under section 25(1) of FOISA applies when the information requested is otherwise available to the general public. When this exemption is applicable the appropriate link has been provided.

An exemption under section 27(1)(a)(i) of FOISA applies when information requested is intended for future publication within 12 weeks of the request being made. When this exemption is used SPS has undertaken to publish the relevant document within 12 weeks of 12 December 2023.

The final exemption relevant to your request is Section 29(1)(a) information relating to the formulation or development of government policy. This exemption is also subject to the public interest test and it has been assessed that the information should be withheld. While it is recognised that there is a general public interest in transparency and accountability in the field of policy development, in this instance it is considered more in the public interest that policy developers are granted the private space to full develop robust policies.

Please note that there is an Annex of attachments at the end of your response which indicates which exemption has been applied to each annex.

Response to second part of your request

The Management of Transgender People in Custody policy (2023) has been developed and introduced by the Scottish Prison Service, an Executive Agency of the Scottish Government. The Scottish Government has not been represented at any meetings or had any correspondence with third parties, including Engender, in relation to the development of the policy. You may find it helpful to view the Scottish Prison Service’s Equality Impact Assessment (EQIA) which details engagement they have had with third parties regarding the development of this policy. This is available at Transgender People in Custody (sps.gov.uk)

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- 202300389198 - Information released - Annex

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73 page PDF

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