FOI/202500487325 · FOI · partially withheld
Correspondence with UK Government Home Office regarding the deportation of foreign criminals: FOI release
Information requested
“A copy of all correspondence between the Justice Directorate and the UK Government Home Office on the subject of the deportation of foreign criminals currently in custody in Scottish Prison system.”
Response
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 exemption(s) under section(s) s.3(2)(a)(ii), s.38(1)(b) (personal information), s.28(1) (relations with UK Government), s.29(1)(a) (policy formulation), and s.30(b)(ii) (free and frank exchange of views for policy development) of FOISA applies to that information. The reasons why the exemptions apply are explained below.
You will find an attachment to this correspondence that holds what we have been able to release for your request.
Section 3(2)(a)(ii)- Information supplied in confidence by UK Government Some of the information you have requested is not held by the Scottish Government for the purposes of FOISA because we received it in confidence from the UK Government. This means that, under the terms of section 3(2)(a)(ii) of FOISA, we are unable to disclose it in response to your request. However, you may wish to submit a new request under the Freedom of Information Act 2000 (FOIA) to the UK Home Office who may be able to help you further. This exemption is not subject to a public interest test.
Section 38(1)(b) – applicant has asked for personal data 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. names and identifying contact information 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.
Section 28(1) – relations within the UK 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, prejudice substantially relations between the Scottish Government and the UK Government. 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. The release of these communications about foreign national offenders will mean that the UK Government is likely to be more reluctant to share such information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations.
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 good relations 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 matters relating to removal of foreign national offenders. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.
Section 29(1)(a) – formulation or development of government policy An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on removal of foreign national offenders, to which the information relates.
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. Their candour in doing so will be affected by their assessment of whether the discussions on matters relating to removal of foreign national offenders will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.
Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation [in relation to Cabinet/Ministerial/official discussions and policy formulation/development] 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 Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on policy issues relating to removal of foreign national offenders will substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and decisions have not been taken, and these discussions relate to a sensitive issue which requires carefully consideration.
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 and officials a private space within which to explore and refine the Government’s policy position on early removal of foreign national offenders, until the Government as a whole can adopt an agreed policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, 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.
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.
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.
Detected exemption language
Information requested “A copy of all correspondence between the Justice Directorate and the UK Government Home Office on the subject of the deportation of foreign criminals currently in custody in Scottish Prison system.” Response 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 exemption(s) under section(s) s.3(2)(a)(ii), s.38(1)(b) (personal information), s.28(1) (relations with UK Government), s.29(1)(a) (policy formulation), and s.30(b)(ii) (free and frank exchange of views for policy development) of FOISA applies to that information. The reasons why the exemptions apply are explained below. Section 3(2)(a)(ii)- Information supplied in confidence by UK Government Some of the information you have requested is not held by the Scottish Government for the purposes of FOISA because we received it in confidence from the UK Government. This means that, under the terms of section 3(2)(a)(ii) of FOISA, we are unable to disclose it in response to your request. This exemption is not subject to a public interest test.