Freedom of Information guidance, monitoring the social media profiles of journalists and sex offender name changing: FOI release

Information requested

1. Could you supply the full internal guidance/guidebook for dealing with FOIs which the Scottish Government abide by, including whether Special Advisers are given first look at them, and what details they are provided with?

2. Could you supply details about whether the Scottish Government monitor the social media profiles of journalists, and if so, is there a list it looks at? Could you supply this?

3. All briefings, correspondence received and sent, including internally, notes/minutes from meetings, about requests to prevent sex offenders from changing their name, between December 1 2023 and the date of this FOI?

4. Could you provide me with all the briefings written for Humza Yousaf regarding the hate crime law, from between March 15 2024 and the date of this FOI?

Response

Q1. For ease I will now answer your question in two parts –

• 1 - “Could you supply the full internal guidance/guidebook for dealing with FOIs which the Scottish Government abide by…”

I have interpreted this to be a request for the full FOI/EIR guidance held centrally by the FOI Unit.

I enclose a copy of most of the information you requested.

However an exemption under Section 38(1)(b) of FOISA (personal information) applies to some of the information in documents 1, 4, 16, and 34 because it is personal data of a third party, i.e. names/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.

Please note that document 1 titled “SharePoint Collection” is an outdated form of guidance that we still hold but some of the information contained is no longer used or relevant. It might be helpful to explain that the Scottish Government doesn’t use a set ‘guidebook’ or one specific form of ‘guidance’ but rather with modern communications we use a variety of methods within our staff intranet and training platform including more dynamic and evolving smaller pieces of advice which enable deep dives on specific FOI topics.

• 2 – “…including whether special advisers are given first look at them, and what details they are provided with?”

I have interpreted this to be asking if Special Advisers have first sight of every FOI/EIR request and what details of these FOI/EIR requests they are provided with.

I enclose some information related to your request.

For clarity, the answer to your request is no, Special Advisers do not have sight of every FOI/EIR request. In order to ensure that we meet our statutory obligations, Scottish Ministers will delegate responsibility for decision-making in FOI/EIR requests to officials of appropriate seniority. FOI/EIR requests sent to the Scottish Government are initially triaged and allocated by the FOI Unit. In this process requests are assessed by the FOI Unit as either requiring a Senior Official or Ministerial decision. When an FOI/EIR is requiring a Ministerial Decision the casehandler will send their draft and information proposed for release to Special Advisers for comment, the casehandler will consider these comments and then send to the Minister for a decision. In some circumstances, a request which has received a Senior Official decision, the casehandler may decide to send their final draft and information intended for release to Special Advisers and the Minister for awareness only.

More information on the Scottish Governments’ decision making process for FOI/EIR requests can be found here SIC+recommendation+1+-+Criteria+for+decision+making.pdf (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(s) listed, then please contact me again and I will send you a paper copy.

Q2. The Scottish Government Communications Division monitors the social media profiles that it runs and is responsible for, but does not actively monitor other social media profiles. As part of routine evaluation of communications activity, we may conduct searches and analysis of publicly available social media commentary on Scottish Government posts and announcements. This is commonly known as Social Media Listening. These searches are typically done with reference to key words or hashtags, and are used to evaluate and inform our communications. Where relevant we may include known stakeholders in these searches, based on publicly available information.

This is therefore a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

Q3. I enclose a copy of some of the information you have requested.

While 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 sections 29(1)(a) (formulation/development of government policy), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (substantial inhibition to free and frank exchange of views), 36(1) (confidentiality under legal proceedings) and 38(1) (b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

An exemption under section 29(1)(a) of FOISA applies to some of the information you have requested due to the information showing development of government policy in the early stages, where options are identified and considered, risks are identified, consultation takes place and recommendations and submissions are presented to Scottish Ministers. 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 some public interest in release due to our desire to be an open and transparent government. However, this is outweighed by the public interest in ensuring that policy can be developed in a well informed and considered way. This enables Ministers and officials to consider all available options and to debate those rigorously in order to fully understand their possible implications.

An exemption under section 30(b)(i) of FOISA (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.

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. 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.

An exemption under section 30(b)(ii) of FOISA applies to some of the information you have requested due to the information potentially inhibiting the free and frank exchange of views for the purposes of deliberation. This exemption is also subject to the 'public interest test'. As before, 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. Again, we have found that, the public interest lies in favour of upholding the exemption to enable frank discussions between officials and with stakeholders in order to ensure that decision making is well informed.

An exemption under section 36(1) of FOISA (confidentiality) 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. As before, we have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform 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 38(1)(b)(personal information) of FOISA applies to much of the information you have requested due to the information containing personal data 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.

Q4. While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section 30(b)(i) (free and frank provision of advice) of FOISA applies to that information. 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 other officials. Disclosing the content of free and frank advice on the Hate Crime and Public Order (Scotland) Act 2021 will substantially inhibit the provision of such advice in the future, particularly because discussions on this matter are still ongoing, and it continues to be a matter of public, political and media interest.

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, as part of the process of briefing the First Minister on matters relating to the Hate Crime and Public Order (Scotland) Act 2021. This private space is essential to enable free and frank advice to be provided on a matter of public, political and media interest. Premature disclosure is likely to undermine the full and frank discussion of issues between the First Minister, Ministers and officials, which in turn will undermine the quality of the briefing process, which would not be in the public interest.

You might be interested to see the parliamentary statement made by the Cabinet Secretary for Justice and Home Affairs on 16 April 2024 regarding the Hate Crime and Public Order (Scotland) Act 2021.

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 202400408156 - Information released - Annex

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