Documentation provided to First Minister on specific dates: FOI Review

Information requested

Original request - 202400435998

1. Copies of any briefings/briefing packs/documentation provided to the First Minister from start of 9 October 2024 to midday 10 October 2024.

2. Copies of any briefings/briefing packs/documentation provided to the First Minister for the purposes of preparation for First Minister’s Questions on 10 October 2024.

3. In the First Minister’s Questions session in the Scottish Parliament on 10 October 2024, the First Minister claimed that 98% of people convicted of rape in Scotland received prison time. Regarding this:

a. Please provide more details around this claim.

b. What is the source of this claim – how was it provided to the first minister, how was it compiled, and what public body compiled it?

c. What other information on conviction prison time rate (i.e. percentage of convicts, by offence type, who experience prison time for their offence) is kept by the Scottish Government or other public bodies?

d. What other information on convict outcomes for rape convictions is available, for example regarding average time served in prison?

e. Please provide an explanation and account for what happened to the other 2%.

Response

Further to my letter of 4 November 2024, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).

Your request was as follows:-

I would like to request a review of the response to questions 1 and 2.

First, I did not intend to limit the scope of these to Justice issues. My request did not communicate that it was my intention to limit the scope of 1 and 2 in this way.

Second, I would like to challenge the application of the free and frank advice exception in question 2. As I do not have access to any of the materials in question, I cannot make detailed appeal on the basis of their contents not qualifying for this exception. However, I can say I am generally sceptical that all things requested under question 2 – not only parts of some documents, but all of all of them, qualify for the exception applied.

Having now considered this I conclude as follows:- 

1. Copies of any briefings/briefing packs/documentation provided to the First Minister from start of 9 October 2024 to midday 10 October 2024.

This was originally interpreted as relating to justice given the content of head 3 of your original request. However, having reviewed it I can release to you the contents of some briefings which have been redacted as appropriate within the terms of the legislation. These are contained in Annex A to this letter. The briefings show the exemptions being applied on the face of them. Here are my conclusions on the exemptions applied with the public interest applied (where applicable).

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some 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 before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the topics within the briefings will substantially inhibit the provision of such advice in the future.

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 as part of the process of exploring and refining the Government’s position. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials.

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, substantially prejudice relations between the Scottish Government and the UK Government. The information shared with us by the UK Government was to be presented for the first time to the inaugural meeting of the Council of Nations and Regions and contained data concerning inward investment across the regions of the UK. This was shared with the Scottish Government in advance of the meeting, and it was intended to be treated as confidential. Our view is that disclosure would substantially prejudice relations with the UK going forward as we can only expect to receive advance notice of sensitive information if we treat such information with appropriate discretion. So, disclosing the information in question would be likely to, substantially prejudice relations between administrations.

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. Disclosure of this information will mean that the UK Government will be more reluctant to communicate as frequently and openly with the Scottish Government in future.

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 close working relationships 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, such as details of regional inward investment. There is no public interest in disclosing information when that will damage relationships and disrupt future communications as that may impact on the effectiveness of future policy development and implementation work. Therefore, in all the circumstances of the case, the public interest is better served by withholding this material.

An 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. 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 25(1) of FOISA has been applied as some of the information is publicly available.

These are as follows: -

• The speech that enables an exception to the release of certain information requested can be found here - Regions4 on X: "For #COP16, Scotland's is showing clear leadership and action in addressing #climatechange and #biodiversityloss, by launching its new Biodiversity Strategy & Delivery Plan to halt nature loss by 2030 and restore ecosystems by 2045 https://t.co/kschSnZ4zV" / X
• The report that enables an exception to the release of certain information requested can be found here- Humanitarian Emergency Fund: annual report 2023-2024 - executive summary - gov.scot (www.gov.scot)
• The agreement that enables an exception to the release of certain information requested can be found here - Showcasing Scotland’s world-class financial services - gov.scot (www.gov.scot)

2. Copies of any briefings/briefing packs/documentation provided to the First Minister for the purposes of preparation for First Minister’s Questions on 10 October 2024.

This was also initially interpreted as relating to justice given the content of head 3 of your original request.

I have reviewed this carefully. For the avoidance of doubt, I reviewed the text in 2 above, that is, without any interpretation of justice applied to it. I then considered all items which may fall within the scope of 2. I have concluded that the original decision should be substituted with a new decision interpreting your request without application of the rider “relating to justice”.

Having done this, I have concluded that exemptions under section 30(b)(i) – free and frank provision of advice and section 30(c) – prejudice to effective conduct of public affairs of the Freedom of Information (Scotland) Act 2002 can reasonably be applied to the information you have requested.

An exemption under sections 30(b)(i) of FOISA (free and frank advice and 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 provision of advice and exchange of views for the purposes of deliberation.

Disclosing the briefing/briefing packs/documentation provided to the First Minister for the purpose of First Minister’s questions on 10 October 2024 would substantially inhibit this process and in briefing for FMQs in the future. The provision of advice and discussions on issue evolve across the course of the week. Final decisions may not have been taken and discussions often relate to evolving and sensitive issues such as those raised at FMQs. Disclosure of this content would restrain, decrease or suppress the freedom within which the opinions or options in the FMQ space are expressed.

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.

The FMQ process provides a private space within which the First Minister can seek and receive open and candid advice and views from officials. It provides a confidential briefing space where the First Minister can interrogate, scrutinise and challenge briefing from policy officials. It provides a confidential space where officials can set out the full range of data, detail and analysis and give a free and frank assessment of policy positions and options for the First Minister to consider. The First Minister uses this to reach settled public positions of these issues, which will be given in whatever final Parliamentary answer the First Minister then decides to give at FMQs. There is a public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers in briefing for FMQs. It is strongly in the public interest that Ministers can properly answer Parliamentary questions, provide detailed, relevant and accurate information to Parliament (to which they are accountable) and robustly defend the Government’s policies and decisions.

I consider further that an exemption under section 30(c) of FOISA – prejudice to effective conduct of public affairs applies to some of the information requested.

Disclosing this information would substantially prejudice our ability to flag issues raised by MSPs and to brief the First Minister on these to enable the First Minister to decide how to respond. This would impact on the quality and detail of the FMQ answers that the First Minister would be in a position to provide. Any inhibition on the ability to flag issues of national and local significance in which MSPs had shown interest in, had previously raised in Parliament, would impact on the ability of Scottish Government to brief in detail on these issues. Disclosure of this information would have real and demonstrable significance and have a significant impact on the business of SG, and of the Parliament. It would limit the provision of free and frank advice and the detail which the First Minister would be able to give as a consequence. It would limit the opportunity for Parliamentarians to seek – and obtain – appropriately detailed answers and to hold Ministers to account. 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. However, there is a greater public interest in protecting the FMQ process as disclosure would restrain, decrease or suppress the freedom within which opinions or options are expressed in the FMQ space and this would not be in the public interest.

About FOI

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 202400438730 - Information Released - Annex A

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