FOI/202600502600 Review of 202500494932 · FOI · partially withheld
Cabinet Secretary for Social Justice correspondence relating to Path To Balance: FOI Review
Information requested
Original request 202500494932
All correspondence mentioning Path To Balance between Shirley-Anne Somerville and the Director General of Communities. Sight of all correspondence mentioning Path To Balance between Shirley-Anne Somerville and Shona Robison.
Response
I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:
Your initial request:
All correspondence mentioning Path To Balance between Shirley-Anne Somerville and the Director General of Communities. Sight of all correspondence mentioning Path To Balance between Shirley-Anne Somerville and Shona Robison.
Your request for review:
I asked the same question for each cabinet secretary and received a response giving me the requested information in relation to Angus Robertson. I believe the exemptions you cite must have been incorrectly applied given the precedent set by the Scottish Government’s response regarding Angus Robertson. I would ask you to review this entire request, applying the full scope of the Freedom of Information Scotland Act. You have a number of options open to when it comes to releasing information, including releasing documentation with highly sensitive passages redacted.
Our response
I have concluded that the original decision should be confirmed, with modifications.
I have reconsidered the in scope information, reviewing it on a line by line basis. Having done so, I have concluded that some information should be disclosed. Information which should now be released can now be found at Annex A attached.
I have concluded that for the most part the exemption at section 29(1)(b) was correctly applied for the reasons set out below.I have also applied the exemption at section 38(1)(b) to withhold some limited third party personal data in the information that I am disclosing at Annex A.
I have further concluded that we should have advised you formally that no information is held that is relevant to part of your request.
Therefore, this is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested, notably there has been no correspondence directly between the Director General Communities and the Cabinet Secretary for Social Justice.
Section 29(1)(b) – Ministerial communications
An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers. 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 policy positions can be explored and refined, 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. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process.
Section 38(1)(b) – applicant has asked for personal data of a 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, ie 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.
In your review request you ask why certain correspondence has been released from a separate FOI request relating to the Cabinet Secretary for Constitution, External Affairs and Culture but not in this instance.
FOI responses and reviews are undertaken independently by Scottish Government civil servants and are considered on their own merits based on the specific wording of the request and on the particular information that is covered by the request. While information of a similar nature may have been disclosed in a previous FOI request we must consider every request on its own merits and in light of the circumstances around that request.
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
I believe the exemptions you cite must have been incorrectly applied given the precedent set by the Scottish Government’s response regarding Angus Robertson. I have concluded that for the most part the exemption at section 29(1)(b) was correctly applied for the reasons set out below.I have also applied the exemption at section 38(1)(b) to withhold some limited third party personal data in the information that I am disclosing at Annex A. Therefore, this is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested, notably there has been no correspondence directly between the Director General Communities and the Cabinet Secretary for Social Justice. Section 29(1)(b) – Ministerial communications An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers. This exemption is subject to the ‘public interest test’.