Former First Minister correspondence on Gaza: FOI Review

Information requested

Original request 202400393608

1. On the 17th October 2023, Humza Yousaf, during his speech to the SNP conference in Aberdeen, called on the UK Government ‘To support the medical evacuation of injured civilians in Gaza’. As SNP party leader, he said, ‘Let me be clear, Scotland is ready to play her part and our hospitals will treat the injured men women and children of Gaza, where we can’. Please advise whether there was any internal Scottish Government discussion/meetings (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment, prior to this statement being made

2. Please provide information on any internal Scottish Government discussion/meetings/correspondence (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment (refer point 1) in the period following this statement being made, specifically from the 18th October 2023 until present day

3. On the 17th October 2023 Humza Yousaf also called on the UK Government to ‘Begin work on the creation of a refugee resettlement scheme’ for those in Gaza who want to leave. And again stated that, ‘Scotland is willing to be the first country in the UK to offer safety and sanctuary to those who are caught up in these terrible attacks’. Please advise whether there was any internal Scottish Government discussion/meetings (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment prior to this statement being made by Humza Yousaf.

4. Please provide information on any internal Scottish Government discussion/meetings/correspondence (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment (refer point 3) in the period following this statement being made, specifically from the 18th October 2023 until present day.

Response

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

1. On the 17th October 2023, Humza Yousaf, during his speech to the SNP conference in Aberdeen, called on the UK Government ‘To support the medical evacuation of injured civilians in Gaza’. As SNP party leader, he said, ‘Let me be clear, Scotland is ready to play her part and our hospitals will treat the injured men women and children of Gaza, where we can’. Please advise whether there was any internal Scottish Government discussion/meetings (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment, prior to this statement being made

2. Please provide information on any internal Scottish Government discussion/meetings/correspondence (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment (refer point 1) in the period following this statement being made, specifically from the 18th October 2023 until present day

3. On the 17th October 2023 Humza Yousaf also called on the UK Government to ‘Begin work on the creation of a refugee resettlement scheme’ for those in Gaza who want to leave. And again stated that, ‘Scotland is willing to be the first country in the UK to offer safety and sanctuary to those who are caught up in these terrible attacks’. Please advise whether there was any internal Scottish Government discussion/meetings (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment prior to this statement being made by Humza Yousaf.

4. Please provide information on any internal Scottish Government discussion/meetings/correspondence (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment (refer point 3) in the period following this statement being made, specifically from the 18th October 2023 until present day.

In your request for review you noted that:

“both Question 1 and Question 3, of my Request, do not actually ask for information in the form of documents to be provided. Both questions simply ask ‘whether there was any internal Scottish Government discussion/meetings (including between Ministers, Civil Servants, and Special Advisers) relating to this public commitment, prior to this statement being made’. There is no request for the actual documents to be provided, just a request for confirmation of whether any of these meetings/discussions took place before the public commitments made by Humza Yousaf, the First Minister on the 17th October 2023. Please provide, therefore, an answer to Question 1 and Question 3 of my original FOI Request. Please also provide an explanation as to why there was no response provided to Question 1 and 3 in the original Response from the Scottish Government. Please also advise on whether any Responses provided in an Appeal Requests are then published online, on the Scottish Government FOI Response page or whether it is just the recipient of the Appeal response who receives this information.”

Response

I have concluded that a different decision should be substituted. Release Annex A collates the information gathered as a result of information retrieved when handling your review request and which is an additional release to that issued in response to your original request.

While we aim to provide information wherever possible, in this case exemptions apply to some of the information that you have requested. Exemptions are indicated within the annex with the relevant FOISA section noted. The reasons why exemptions apply are set out below:

Section 38(1)(b), personal data of a third party

The 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, i.e. names/contact details of individuals (junior members of Scottish Government staff), 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.

29(1)(a), formulation or development of government policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested. The information relates to the formulation and development of the Scottish Government’s policy on a possible resettlement scheme for people displaced from Gaza and handling of any medical evacuations from Gaza to the UK. 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, we consider that there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. Additionally, topics under discussion require private space to discuss effectively. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, and understand fully their possible implications. Officials’ candour in doing so, and engaging others, will be affected by their assessment of whether their discussions of approaches to a possible resettlement scheme or any medical evacuations from Gaza to the UK will be disclosed in the near future, when it mayundermine or constrain the Government’s view on that policy while it is still under discussion and development.

Section 30(b)(i) – substantial inhibition free and frank provision of advice

An exemption under Section 30(b)(i) of FOISA (substantial inhibition free and frank provision of advice) applies to some of the information requested. 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 Ministers and other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on issues including resettlement/medical evacuation of individuals from Gaza will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a highly sensitive topic and are still ongoing.

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 other officials and Ministers as part of the process of exploring and refining the Government’s position and potential policies on issues relating to resettlement/medical evacuation of individuals from Gaza until the Government as a whole can adopt a position 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.

Section 30(b)(ii), substantial inhibition to free and frank exchange of views for the purposes of deliberation

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some 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 a possible resettlement scheme for people displaced from Gaza and any medical evacuations from Gaza to the UK will substantially inhibit such discussions in the future, particularly because these discussions are highly sensitive and still ongoing.

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 a possible resettlement scheme for people displaced from Gaza and any medical evacuations from Gaza to the UK , until the Government as a whole can adopt an approach 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/policy making process, which would not be in the public interest.

Section 28(1) – relations within the UK

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. This requirement is particularly acute during a crisis such as an ongoing conflict. The release of communications relating to the situation in Gaza from different departments including but not limited to the Foreign, Commonwealth and Development Office; Department of Health and Social Care; and Ministry of Defence will mean that the UK Government is likely to be more reluctant to share such information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations.

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 maintaining good relations between the Scottish Government and the UK Government and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, including updates on issues of humanitarian concern relating to ongoing conflict. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

Section 25: Information otherwise accessible

Some of the information you have requested is available from the Scottish Government website at Communications between Ministers and officials regarding Gaza/Israel: 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, then please contact me again and I will send you a paper copy. This document is also a partial release because exemptions apply. I can confirm I have reconsidered this document in relation to your request and have concluded that these exemptions remain valid.

Additional question in your review request

With regards your question about FOI response material publication: a minor clarification to note that this case is currently at review stage, not appeal, which is a subsequent stage should you remain unsatisfied with this response and additional release. In response to your question I can however confirm that the Scottish Government does publish Review Responses in instances where the Review leads to the release of new/additional information – as in this case.

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 202400402356 - Information released - Annex A

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