Private Purpose Trusts documentation: FOI release

Information requested

“Any documents, reports, briefings of other materials held by the Scottish Government which relate to Private Purpose Trusts. Please also share any communications which occurred over the last year which relate to Private Purpose Trusts. Please ensure any communications are dated and displayed in chronological order, that media such as images and video are included, and all forms of communications, including Whatsapp, are provided.”

Response

Scottish Government response to your request for information

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 25(1) (information otherwise accessible), 30(b)(i) (free and frank advice), 36(b)(ii) (free and frank exchange of views, 36(1) (confidentiality in legal proceedings) and 38(1)(b) (personal information) The reasons why those exemptions apply are explained in the Annex to this letter.

The rest of the information you have requested has been included.

ANNEX A
REASONS FOR NOT PROVIDING INFORMATION: FOI(S)A

Section 25(1) – information otherwise accessible
When a Scottish Government Bill is published on the Scottish Parliament website a number of accompanying documents are also published. These include information on amendments made at Stages 2 and 3 related to private purpose trusts and the Government’s reason for tabling these amendments. When the Bill proceeds through its parliamentary stages amendments to the Bill and the official report of what was discussed either in the Chamber or at Committee are available on the Scottish Parliament website. These documents are accessible on the Scottish Parliament website at the following links:

• https://www.parliament.scot/-/media/files/legislation/bills/s6-bills/trusts-and-succession-scotlandbill/stage-2/marshalled-list-of-amendments-for-stage-2.pd
• https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-inparliament/pa-14-11-2023?meeting=15544
• https://www.parliament.scot/-/media/files/legislation/bills/s6-bills/trusts-and-succession-scotlandbill/stage-3/marshalled-list.pdf
• https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-inparliament/meeting-of-parliament-20-12-2023?meeting=15625&iob=133312.

Section 30(b)(i) - full and frank advice
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 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 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 Scottish Government staff can provide full and frank advice to Ministers until the Government as a whole can adopt a policy 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 policy 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 policy making process, which would not be in the public interest.

Section 30(b)(ii) - full and frank exchange of views
An exemption under section 30(b)(ii) 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 exchange of views. 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. 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 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 exchange full and frank views, as part of the process of exploring and refining the Government’s policy position. 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. 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 policy making process, which would not be in the public interest.

Section 36(1) – confidentiality in legal proceedings
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) 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. 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.

Section 38(1)(b) – Personal data relating to third party
An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested 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.

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 202400438908 - Information Released - Annex

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