Redactions in WhatsAPP/text message documents: FOI Appeal

Information requested

1. Please add to the released document all the "out of scope" redactions as the overall information is impossible to digest without their inclusion (86 out of scope redactions in 106 pages)

2. There are about 900 redacted text sections in the 106 pages released. It is unclear how many words, sentences, etc have been undisclosed. Please show within the 106 page document the extent of the redacted material by using black block within the released document over the redacted content.

Response

We have given further consideration to the information previously withheld and in doing so have determined that some further information can be disclosed. This information is set out in annex A to this letter.

We have also determined that a small amount of information in one exchange marked in the publication as ‘out of scope’ which was not previously considered to be government business does on reflection set out details of an exchange of a business nature. This is also included in Annex A. We consider that this information would be exempt from disclosure under section 29(1)(b) and section 30(b)(ii) of FOISA for the reasons set out below:

Section 29(1)(b) (Ministerial Communications)

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies because it relates to communications directly between John Swinney the Deputy First Minister and Cabinet Secretary for Education and Skills and Humza Yousaf the Cabinet Secretary for Justice (at the time of the messages).

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 a private space within which issues and policy positions can be explored and refined, until the Government as a whole can reach a decision or adopt a policy that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process. We consider that disclosing details of the topics discussed would be substantially detrimental to the way in which Ministers would engage with other Ministers in future. In this instance disclosing details of candid exchanges would adversely impact on relationships where sensitivities were high and would undermine ministerial unity and effectiveness and result in less robust, well-considered debates and decisions, which would not be in the public interest.
Section 30(b)(ii) (free and frank exchange of views)

An exemption under section 30(b)(ii) applies because it is essential for Ministers to be able to communicate with each other and with external stakeholders often in confidence, on a range of issues, including on issues of an operational nature during the Covid 19 pandemic. Disclosing the full content of these communications, particularly without the stakeholder’s consent, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. Stakeholders will be reluctant to provide their views fully and frankly either in writing or at meetings if they believe that their views are likely to be made public, particularly while these discussions relate to sensitive or controversial issues such as the Covid-19 pandemic.

Public Interest

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 believe there is a greater public interest in allowing Ministers and stakeholders a private space within which to communicate as part of the process of exploring and refining their position during the pandemic. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence. Disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and its stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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FOI 202400410703 - Information Released - Annex A

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