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Our ref: FOI/10/00161

25 February 2010

Dear Mr Wright

Thank you for your request dated 30 January 2010 and under the Freedom of Information (Scotland) Act 2002 (FOISA) which was as follows:

Please provide details of the discussions which took place prior to and during the formulation of a recent change in the way the Scottish Government handles FOI requests, which has deemed that requests to the Government for documents are invalid. (This has

been well publicised in the Scottish press). This reinterpretation of the FOI Scotland Act followed the Court of Session Opinion of 30th September 2009 (Glasgow City Council vs

Scottish Information Commissioner).

In particular, the information I am requesting is:

(a) Details of internal Scottish Government discussion between ministers (especially Stewart Maxwell), advisors, officials, FOI officers or other Government staff relating to the change of interpretation of FOISA - how was this decided, by whom was it decided, and for what reasons?;

(b) Details of any discussion with external parties such as legal or Freedom of Information

advisors relating to these same topics and questions - what advice did the Scottish Government seek and receive?

You subsequently clarified this to say that you were particularly interested in information relating to Bruce Crawford, Minister for Parliamentary Business, and not Stewart Maxwell MSP.

I should say that the Scottish Government welcomes the recent Court of Session decision. It clarified that the legislation provides a right to obtain information, rather than a right to obtain copies of specific documents. In practice, it may be easier for authorities just to provide copies of documents but that will not always be the case. Each case is considered on its own merits.

We do endeavour to provide information whenever possible. However in this instance the following exemptions of FOISA apply to some of the information requested:

s29(1)(a) - Formulation of Scottish Administration policy etc. - applies to information which relates to the formulation or development of government policy;

s30(b)(i) & s30(b)(ii) - Prejudice to effective conduct of public affairs - apply when the information consists of (i) free and frank provision of advice and (ii) free and frank exchanges of views for the purposes of deliberation;

s36(1) - Confidentiality - applies where the information consists of that for which a claim to confidentiality of communications could be maintained in legal proceedings.

As these exemptions are non-absolute we have applied the 'public interest test'. This means we have, in all the circumstances of this case, considered if the public interest in disclosing the information outweighs the exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. We are still in the process of considering our position in relation to the Court of Session decision and holding discussions with the Scottish Information Commissioner and lawyers as necessary. Ministers and officials need private space in which to consider all options open to them. Release of the information would not only have a prejudicial effect on this process, and essentially amount to a breach of the otherwise confidential client-advisor relationship with lawyers, but may well also hinder our working relationship with the Scottish Information Commissioner. It is therefore not in the public interest for such circumstances to arise as a result of release at this point in time.

We are currently updating our guidance on how officials should deal with requests, following on from the clarification the Court of Session decision has provided in relation to whether or not a request for information made under FOISA is valid. It is our intention to publish this guidance on the Scottish Government website within the next twelve weeks and to that end, section 27 of FOISA applies (Information intended for future publication).

This is also a non-absolute exemption. We have concluded that it is in the public interest to withhold the information. The guidance is currently being drafted and officials and Ministers require private space in which to seek advice and views and amend the advice as necessary, before it is published. We also wish to seek the Scottish Information Commissioner's views. To publish prematurely is not in the public interest as this would not allow us the time required to finalise the redraft and ensure it is clear and correct and reflects the advice we have received from all relevant sources. If you wish, however, once the document is ready to be published I will send you a copy. Please let me know if you wish me to do so.

You may wish to look at the Scottish Information Commissioner's guidance, which can be accessed at:

 http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/CourtofSessionGuidance2010/Validrequests.asp.

If you are unhappy with this response to your request, you may ask us to carry out an internal review, by writing to Robert Gordon, Director General Constitution and Corporate Change, at St Andrews House, Regent Road, Edinburgh EH1 3DG. Your request should explain why you wish a review to be carried out, and should be made within 40 working days of receipt of this letter, and we will reply within 20 working days of receipt. If you are not satisfied with the result of the review, you then have the right to make a formal complaint to the Scottish Information Commissioner.

Yours sincerely

Emma Murray