Data Processor Agreements between the Scottish Government and Local Authorities: FOI release

Information requested

Data Processing Agreements, Data Sharing Agreements and any other agreements or contracts between the Scottish Government and each of 16 named Local Authorities in relation to children's data gathered, transferred/shared and processed in the Health and Wellbeing Census that took place in schools in 2021/2022, including any updates to theseagreements/contracts.

Response

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

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. The reasons why we don't have the information are explained below.

An exemption under section(s) s.38(1)(b) (personal information) of FOISA applies to some of the information you have requested. This exemption applies to the names of certain individuals contained in the documents attached.

An exemption under section(s) s.30(c) (substantial prejudice to the effective conduct of public affairs) of FOISA applies to some of the information you have requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on the Data Processor Agreements between the Scottish Government and Local Authorities in relation to the Health and Wellbeing Census 2021/2022, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on Data Processor Agreements between the Scottish Government and Local Authorities in relation to the Health and Wellbeing Census. 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, and to inform public debate. However, there is a greater public interest in enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of SmartSurvey. Disclosing this information would be likely to give competitors an advantage in future similar tendering exercises, which would substantially prejudice SmartSurvey’s ability to submit competitive tenders and so could significantly harm their commercial business. 

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 and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which enter into Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

Data Processor Agreements

You asked for the Data Processor Agreements between the Scottish Government and 16 Local Authorities in relation to the Health and Wellbeing Census 2021/2022. We provided Data Processor Agreements and letters of extension for those local authorities wishing to continue to use the SG provided online platform (SmartSurvey) to undertake any applicable local surveys of their own. The master Data Processor Agreements, extension letters and updates to these are included in the attached.

The below table sets out when Data Processor Agreements and/or extension letters were signed by each of the 16 named Local Authorities. Either a signed extension letter or new Data Processor Agreement is required from each local authority at each contract extension based on previous arrangements in place. We only received signed copies of Data Processing Agreements and/or extension letters where local authorities wished to continue to use the SG provided online platform (SmartSurvey). Therefore s.17(1) no recorded information is held for some cases. Glasgow City had their own Smart Survey account and it was their intention to have the Health and Wellbeing Census questionnaires transferred over to their own account. Therefore, they didn’t require a Data Processor Agreement.

LA	2019 Data Processor Agreement	2020 extension letter	2021 Data Processor Agreement	2021 extension letter	2022 Data Processor Agreement	2024 extension letter
Angus	02/08/19	17/09/20	N/A	13/09/21	21/12/22	s.17(1) no recorded information is held
Clackmannanshire	21/05/19	13/11/20	N/A	15/09/21	08/02/23	s.17(1) no recorded information is held
Dumfries & Galloway	10/05/19	16/09/20	N/A	03/09/21	20/12/22	s.17(1) no recorded information is held
Dundee City	10/05/19	s.17(1) no recorded information is held	06/09/21	N/A	16/12/22	s.17(1) no recorded information is held
East Renfrewshire	03/06/19	16/09/20	N/A	11/11/21	s.17(1) no recorded information is held	s.17(1) no recorded information is held
Edinburgh, City of	02/07/19	30/09/20	N/A	13/09/21	s.17(1) no recorded information is held	s.17(1) no recorded information is held
Falkirk	10/05/19	23/09/20	N/A	07/09/21	28/02/23	07/10/24
Glasgow City	s.17(1) no recorded information is held	s.17(1) no recorded information is held	s.17(1) no recorded information is held	s.17(1) no recorded information is held	s.17(1) no recorded information is held	s.17(1) no recorded information is held
Moray	31/07/19	s.17(1) no recorded information is held	11/11/21	N/A	16/01/23	s.17(1) no recorded information is held
North Ayrshire	11/06/19	13/10/20	N/A	07/10/21	13/01/23	s.17(1) no recorded information is held
Perth & Kinross	10/05/19	s.17(1) no recorded information is held	06/09/21	N/A	s.17(1) no recorded information is held	s.17(1) no recorded information is held
Renfrewshire	21/06/19	15/10/20	N/A	28/10/21	s.17(1) no recorded information is held	s.17(1) no recorded information is held
Scottish Borders	30/05/19	11/11/20	N/A	21/09/21	s.17(1) no recorded information is held	s.17(1) no recorded information is held
Shetland Islands	14/05/19	12/11/20	N/A	15/11/21	s.17(1) no recorded information is held	s.17(1) no recorded information is held
South Ayrshire	30/09/19	05/10/20	N/A	07/09/21	s.17(1) no recorded information is held	s.17(1) no recorded information is held
Stirling	10/05/19	17/09/20	N/A	21/09/20	20/12/22	s.17(1) no recorded information is held

Data Sharing Agreements

You asked for the Data Sharing Agreements between the Scottish Government and 16 Local Authorities in relation to the Health and Wellbeing Census 2021/2022. Data Sharing Agreements were subject to edits by the local authorities and so different versions were created and signed for each local authority. 15 Data Sharing Agreements are included in the attached. s.17(1) no recorded information is held for Renfrewshire as the file for Data Sharing Agreement EDA2131 held by the Scottish Government has become corrupted and unrecoverable. However you may wish to contact the local authority who may be able to help you.

Other relevant agreements or contracts

You asked for any other agreements or contracts between the Scottish Government and 16 Local Authorities in relation to the Health and Wellbeing Census 2021/2022. s.17(1) no recorded information is held.

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The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI - 202400436065 - Information released - Annex

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