Correspondence regarding Review of Creative Scotland: FOI release

Information requested

(1) Can you release all correspondence between the Scottish Government and Creative Scotland in 2024 and 2025 regarding the Scottish Government’s review of Creative Scotland?

(2) Can you release any internal correspondence regarding the Scottish Government’s review of Creative Scotland?

Response

I enclose a copy of most of the information you requested. Please see attached your request in relation to the Review of Creative Scotland.

Some of the information you have requested is available from the Scottish Government website at: Correspondence relating to the First Minister's review into Creative Scotland: FOI release - gov.scot.

Sections of correspondence below have been redacted because the information does not fall under your request. These are marked as "REDACTED – OUT OF SCOPE".

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 an exemptions under s.29(1)(a); s.30(b)(i); s.30(b)(ii); s.30(c); s.36(1); and s.38(1)(b) of FOISA applies to that information. The reasons why that exemption(s) applies are explained below/in the Annex to this letter.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some the information requested because it relates to the formulation and development of the Scottish Government’s policy. 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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, 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. Disclosing the content of free and frank advice on the development of the review of Creative Scotland will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken. 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 and other officials. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken.

An exemption under section 30(b)(ii) of FOISA (free and frank 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 exchange of views for the purposes of deliberation. This exemption recognises the need for officials to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions with Creative Scotland on the review will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly while these discussions are still ongoing and decisions have not been taken. 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 officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position. 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.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice, 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. 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 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.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data, ie names, job titles and 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.

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FOI 202500447984 - Information Released - Annex

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