FOI reference: FOI/17/01587
Date received: 3 July 2017
Date responded: 31 July 2017
Information contained in correspondence, meetings, communications and discussions in relation to and including information which has been communicated with core participants and those with leave to appear between organisations and their legal representatives and the Scottish Government in relation to the Child abuse inquiry, chaired by Lady Smith.
I enclose a copy of some of the information you requested. However, we have applied exemptions under section 30(c) (prejudice to effective conduct of public affairs),section 37(1)(b)(ii) information held by an Inquiry and section 38(1)(b) (personal information) of FOISA to some of the information requested.
We have identifyed two pieces of information that are within the scope of your request, however we have applied an exeption under section 30(c) (prejudice to effective conduct of public affairs) and section 38(1)(b) (personal information) of FOISA to that information. The reasons why these exemptions apply are explained in the Annex to this letter.
We have also identifyed that some of the information you have requested is available from the following websites; Scottish Parliament and Scottish Government. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.
Reasons for not providing information
Section 38(1)(b) – applicant has asked for personal data of a third party.
An exemption under section 38(1)(b) applies to the personal data because disclosing it would not be in compliance with the data protection principles in Schedule 1 to the Data Protection Act 1998 and in particular the first data protection principle which requires that data has to be processed fairly and lawfully and one of the conditions in Schedule 2 has to be met. In relation to the Schedule 2 conditions the data subjects have not consented to the release of their data. I have therefore considered whether condition 6(1) had been met and whether the balance of legitimate interests lies in favour of release. I have concluded that it does not as I can see no justification in providing the names or contact details of officials who have been involved in dealing with the information which is the subject of your request.
Section 37(1)(b)(ii) – not required to disclose information outwith proceedings.
An exemption under section 37(1) (b) (ii) (created by a person conducting an inquiry or arbitration, for the purposes of that inquiry or arbitration) of FOISA applies to the information requested. 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 37 of FOISA ensures that where authorities hold information solely because of their involvement in court proceedings, an inquiry or arbitration, they are not required to disclose the information outwith those proceedings.
Section 30(c) – substantial prejudice to the effective conduct of public affairs An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers and officials to be able to communicate and meet, often in confidence, with external stakeholders on a range of issues, including in relation to sponsorship of the Scottish Child Abuse Inquiry.
Disclosing the content of these communications particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future.
These stakeholders will be reluctant to participate in meetings and provide their views fully and frankly if they believe that their views are likely to be made public, particularly in regards to the Scottish Government's role in sponsoring the on-going independent Scottish Child Abuse Inquiry. This would significantly harm and could adversely affect its ability to carry out its specific, focused statutory duties, under the Inquiries Act 2005, in relation to public Inquiries.
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 communicate and meet with appropriate external stakeholders as part of the commitment continue to give a voice, and support to survivors of child abuse in care.
This private space is essential for stakeholders such survivor groups and their representatives to fulfil the Scottish Government's commitment to the independent Inquiry, ensuring that the nature and extent of abuse of children in care is investigated, that failures to protect children are uncovered and any further changes needed to practice, policy or legislation are put in place. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the Scottish Child Abuse Inquiry, which would not be in the public interest.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House