FOI reference: FOI/17/02346
Date received: 12 October 2017
Date responded: 8 November 2017
Minutes of the meetings between John Swinney and Susan O'Brien QC on 22 and 28 June 2016. Include a list of all officials present. Also, any correspondence between John Swinney and any other members of the Scottish Government on this meeting.
I enclose a copy of some of the information you requested at Annex B. However, some names and contact details have been redacted because an exemption under section 38(1)(b) (personal data) applies to that information. This exemption applies because the information is personal data of a third party and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.
I have identified that we hold other pieces of correspondence which would fall within the scope of your request, however while our aim is to provide information whenever possible, in this instance we are unable to provide some of the information because exemptions under Section 36(2) (actionable breach of confidence) and Section 30(b)(ii) (free and frank exchange of views) of FOISA applies to the information requested. The reasons why that exemption applies are explained below.
Reasons for not providing information
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 the information requested would substantially inhibit such discussions in the future.
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 position.
An exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some of the information requested. To disclose would constitute an actionable breach of confidence. This is because the information is confidential, was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality, and unauthorised disclosure would be to the detriment of who provided the information. 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.
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