FOI/202600505379 · FOI · partially withheld
Cabinet Secretary for Justice and Home Affairs communications relating to the Proposed Prostitution (Offences and Support) Bill: FOI release
Information requested
All communication to and from the Cabinet Secretary for Justice and Home Affairs and her office relating to the Proposed Prostitution (Offences and Support) Bill. The bill was also known as the Unbuyable bill and was brought forward by Ash Regan MSP.
Please also provide any communication from her office that mentions Ash Regan MSP. 2023 onward.
Response
Some of the information you have requested is publicly available online. The identified document can be found - Open letter from prostitution survivors to Scottish Ministers and MSPs in support of Ash Regan’s Unbuyable Bill | Nordic Model Now! Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you have difficulty in accessing the link provided, then please contact me again and I will send you a paper copy.
Please see attached Annexes which contain items identified in relation to your request. 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 the following exemptions apply:
Section 29(1)(a) formulation or development of government policy Section 29(1)(b) Ministerial Communications Section 29(1)(c) Advice by law officers Section 29(1)(d) Operation on Ministerial private office Section 30(b)(i) free and frank provision of advice Section 38 personal information
Further information on why these exemptions apply can be found below.
FURTHER INFORMATION ON EXEMPTIONS APPLIED
Exemptions under section 29(1)(a) formulation or development of government policy applies to some of the information requested because it relates to the government developing its response to the member’s bill on prostitution, which included considering the interaction with existing policy development in this area.
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.
Exemptions under Section 29(1)(b) – Ministerial Communications, information is exempt under section 29(1)(b) if it relates to communications between Ministers. This includes communications relating to proceedings of the Scottish Cabinet (or of any committee of that Cabinet). “Minister” includes junior Scottish ministers as well as members of the Scottish Government.
The exemption covers information “relating to” Ministerial communications, which covers more than just direct communications between Ministers. It could also cover things like: (i) records of discussions between Ministers (ii) drafts of letters/documents, whether or not these were finalised or sent.
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 a private space within which issues can be discussed and explored, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken.
An exemption under Section 29(1)(c) Advice by law officers applies as the information relates to the provision of advice by any of the Law Officers or any request for the provision of advice by any of the Law Officers. The Law Officers are: the Lord Advocate, the Solicitor General for Scotland, the Advocate General for Scotland, the Attorney General, the Solicitor General and the Attorney General for Northern Ireland.
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 public interest in release as part of open and transparent government. 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 29(1)(d) Operation on Ministerial private office applies as the information relates to the operation of any Ministerial private office (i.e. any part of the Scottish Administration which provides personal administrative support to a Minister).
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, to ensure private offices operate efficiently and to inform public debate.
Exemptions under Section 30(b)(i) free and frank provision of advice applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice for the purposes of deliberation. Section 30(b)(i) recognises the need for Ministers and officials to receive advice within a private space before the Scottish Government reaches a settled public view. These exemptions are 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 the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can reach a final decision. This private thinking space also allows for 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, which in turn will undermine the quality of the policy-/decisionmaking process, which would not be in the public interest.
Exemptions under Section 38 (personal information) of FOISA contains four exemptions, all relating to personal information. Information is exempt from disclosure if it is:
the personal data of the person requesting the information (section 38(1)(a)); the personal data of a third party – but only if other conditions apply (section 38(1)(b)); personal census information (section 38(1)(c)); or a deceased person's health record (section 38(1)(d)).
The exemptions in sections 38(1)(a) and (b) regulate the relationship between FOISA, the UK General Data Protection Regulation and the Data Protection Act 2018. Processing of personal data must be fair as well as lawful, so fairness needs to be considered separately. Guidance issued by the ICO in relation to the UK GDPR states that fairness means public authorities should only handle personal data in ways that people would reasonably expect and not use it in ways that have unjustified adverse effects on them. Public authorities should therefore consider the following:
Whether the individual expects their role to be subject to public scrutiny. Consideration should be given to the person’s seniority, whether they have a public profile and whether their role requires a significant level of personal judgement and individual responsibility. Whether any distress or damage would be caused to the data subject as a result of the disclosure. Any express refusal by the data subject. Whether the information relates to the data subject’s public or private life. A person’s private life is likely to deserve more protection.
Therefore, to protect those individuals from unexpected public scrutiny and potential distress or damage caused by disclosure, it is considered that the exemption, detailed above, is applicable in these circumstances.
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
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. 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 the following exemptions apply: Section 29(1)(a) formulation or development of government policy Section 29(1)(b) Ministerial Communications Section 29(1)(c) Advice by law officers Section 29(1)(d) Operation on Ministerial private office Section 30(b)(i) free and frank provision of advice Section 38 personal information Further information on why these exemptions apply can be found below. FURTHER INFORMATION ON EXEMPTIONS APPLIED Exemptions under section 29(1)(a) formulation or development of government policy applies to some of the information requested because it relates to the government developing its response to the member’s bill on prostitution, which included considering the interaction with existing policy development in this area. 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.