Publication - FOI/EIR release

Chief Constable's leave of absence, communications with SPA: FOI release

Published: 16 March 2018
Directorate: Safer Communities Directorate
Part of: Law and order, Public sector

Information request and response under the Freedom of Information (Scotland) Act 2002.

FOI reference: FOI/18/00072
Date received: 11 January 2018
Date responded: 15 March 2018

Information requested

Any correspondence, letters, emails, notes of meetings or calls, or any other documents relating to communication between the SPA and the Scot Gov regarding the Chief Constable's leave of absence, since 01/01/17.

Response

Some of the information you have requested is contained within the text of the Cabinet Secretary for Justice's statement to the Scottish Parliament on 10 January, and in Paul Johnston, Director-General for Education Communities and Justice' s letter to the Public Audit and Post-legislative Scrutiny Committee, dated 12 January. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. However, these documents can be accessed on the Scottish Parliament website at the following links:

http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11297&i=102809

http://www.parliament.scot/S5_Public_Audit/Meeting%20Papers/Agenda_and_Papers_-_25_Jan_2018.pdf

In addition to those documents, I have indentified some other information that is within the scope of your request. I have enclosed some of that information. However, we are unable to provide some of the information identified because exemptions under section 36(1) (confidentiality in legal proceedings), 30(b)(i) (free and frank advice) and 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Reasons for not providing information

An exemption applies, subject to the public interest test.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information because it refers to legal advice, and disclosure would breach legal professional privilege.

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 some public interest in release as part of open and transparent government, and to inform public debate. 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 30(b)(i) (free and frank provision of advice) of FOISA applies to some of the material. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice to Ministers.This exemption recognises the need for officials to have a private space to provide free and frank advice to Ministers. Disclosing the content of free and frank advice intended to inform Ministers about current issues regarding their engagement with stakeholders, will substantially inhibit the provision of such advice 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 a private space within which officials can provide full and frank advice to Ministers, regarding discussions with stakeholders. This private space is essential to ensure all issues are properly considered in advance of engagement with stakeholders. Premature disclosure is likely to undermine the full consideration of issues between Ministers and officials, which in turn will undermine the quality of such engagement, which would not be in the public interest.

An exemption applies, not subject to the public interest test.

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, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. We have applied this exemtion to the names of all junior officials, and to all telephone numbers.

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.

About FOI

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