Legal information regarding to data processing relating to Home Education

The request was refused by Dumfries and Galloway Council.

Dear Dumfries and Galloway Council,

I would like to request information in relation to data processing regarding Home Education Statutory Guidance, and the local D&G Home Education Policies.

I would be grateful for copies of all Legal advice given to D&G Education Dept, the Home Education Local Policy writer, and the Education Committee CYPLL regarding;

1) all data processing (including Named Person, GiRFEC and wellbeing data processing) relating to Home Education, Home Educators and prospective Home Educators,

2) Home Education Local Policy, Home Education Statutory Guidance, Education (Scotland) Act 1980 where this relates to Home Education, Standards in Scotland’s Schools etc. Act 2000 where this relates to Home Education, and over-arching laws and rights (eg. GDPR/DPA, ECHR Article 8/UNCRC Article 16, Local Government in Scotland Act 2003 Section 22, and Common Law of Confidentiality) which are limiting and protect individuals rights, in my request the individuals are Home Educators and prospective Home Educators,

since 2013.

I look forward to receiving your response.

Yours faithfully,

V. Colvin

Dumfries and Galloway Council

FREEDOM OF INFORMATION (SCOTLAND) ACT 2002

Thank you for your request for information which was received on 25/03/2019 which we are dealing with in terms of the above legislation. We have given your request the unique reference 400102 and we would appreciate it if you could quote this on all correspondence to us.

Under the terms of the legislation, we have an obligation to respond to your request within 20 working days from the day after your request was received. We will therefore aim to respond to your request by 24/04/2019.

Please be aware that, in some circumstances, a fee may be payable for the retrieval, collation and provision of the information you have requested. If this is the case, a fees notice will be issued, which would need to be paid in order to progress your request.

If your request for information is considered and deemed as a 'business as usual' request, it will be responded to by the appropriate Service within the Council.

If you have any queries in the meantime, please contact [email address].

Kind Regards

FOI Unit
Dumfries and Galloway Council

Any email message sent or received by the Council may require to be disclosed by the Council under the provisions of the Freedom of Information (Scotland) Act 2002.

FOI Responses, Dumfries and Galloway Council

1 Attachment

                             

Please find below the Council's response to your request 400102 which was
received on 25/03/2019.

 

Details of request: Dear Dumfries and Galloway Council,

 

I would like to request information in relation to data processing
regarding Home Education Statutory Guidance, and the local D&G Home
Education Policies.

 

I would be grateful for copies of all Legal advice given to D&G
Education Dept, the Home Education Local Policy writer, and the Education
Committee CYPLL regarding;

 

1) all data processing (including Named Person, GiRFEC and wellbeing data
processing) relating to Home Education, Home Educators and prospective
Home Educators,

 

2) Home Education Local Policy, Home Education Statutory Guidance,
Education (Scotland) Act 1980 where this relates to Home Education,
Standards in Scotland?s Schools etc. Act 2000 where this relates to Home
Education, and over-arching laws and rights (eg. GDPR/DPA, ECHR Article
8/UNCRC Article 16, Local Government in Scotland Act 2003 Section 22, and
Common Law of Confidentiality) which are limiting and protect individuals
rights, in my request the individuals are Home Educators and prospective
Home Educators,

 

since 2013.

 

 

Response:

 

Please find attached a copy of the Home Education Policy that was in draft
form in 2018 and has since materially changed. 

 

Legal advice was given with regards to this draft policy around the
following areas

o The Convention
o Case Law
o Determination of Home Education Proposals
o Powers and Duties designed to ensure that the Child receives an
efficient Education
o The Scottish Government Home Education Guidance
o Monitoring of Home Education

 

Dumfries and Galloway Council is withholding more detail on this advice as
it is exempt from disclosure under S36(1) of the FOISA as such
communications comprise:

 

i) communications with a professional legal adviser, such as a solicitor
or an advocate; ii) the legal adviser acting in their professional
capacity; and iii) the communications occurring in the context of the
legal adviser's professional relationship with their client

 

The exemption in section 36(1) is a qualified exemption, which means that
it is subject to the public interest test set out in section 2(1)(b) of
FOISA.

 

The Council's position is that the public interest in disclosing the
information is not outweighed by the public interest in withholding it.
There is a strong public interest in Education being able to receive,
unhindered, full legal advice. Without such comprehensive advice being
available to Education, its ability to make fully informed decisions would
be restricted, which would not be in the public interest. There is also a
significant public interest in maintaining the right to confidentiality of
communications between legal adviser and client on administration of
justice grounds.

 

We are mindful that you are currently working with Council Officers to
produce an updated version of the Home Education Policy and we can assure
you that we will endeavour to make this process as fair and transparent as
possible.  To this end, legal advice on the updated policy will be sought
and shared and this advice will feed into the work that is currently being
carried out.

 

Please be aware that the Council holds the copyright, where applicable,
for the information provided and it may be reproduced free of charge in
any format or media without requiring specific permission.  This is
subject to the material not being used in a misleading context.  The
source of the material must be acknowledged as Dumfries and Galloway
Council and the title of the document must be included when being
reproduced as part of another publication or service.

 

If you require any further clarification, please contact us.  However, if
you are not satisfied with the way in which your request has been dealt
with, you can request us to carry out an internal review of the decision
by emailing [1][email address] or writing to us within 40 working days
of receiving this response. 

 

If you are dissatisfied with the outcome of the review, you have the right
to apply to the Scottish Information Commissioner for a decision. Appeals
to the Commissioner can be made online at
[2]https://eur03.safelinks.protection.outlo...
or in writing to: The Office of the Scottish Information Commissioner,
Kinburn Castle, Doubledykes Road, St Andrews, Fife, KY16 9DS.

              

Kind Regards

 

FOI Unit 

Dumfries and Galloway Council  

 

Any email message sent or received by the Council may require to be
disclosed by the Council under the provisions of the Freedom of
Information (Scotland) Act 2002.

References

Visible links
1. mailto:[email address]
2. https://eur03.safelinks.protection.outlo...

Dear Dumfries and Galloway Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Dumfries and Galloway Council's handling of my FOI request 'Legal information regarding to data processing relating to Home Education'.

You have used exemption 36 (1) which is subject to the public interest test. My request is in the public interest as many home educators, both local and national, including Scottish Home Education Forums, are very interested, in the context of our new Local Home Education Policy being written.

The information I have requested is necessary in that without it I am unable to fully engage in the consultation in working towards a lawful policy being written, as not being able to have informed discussions, unable to question any Legal advice given or the thinking/processes originating from Legal behind the wording in the draft policies.
Previous D&G Home Education Policies have been unlawful and have been challenged unsuccessfully. Home Educators have never before been invited to contribute to any consultation despite statute stating we should be, so this one is our first and we need to be fully informed.

I have never been offered any copies of Legal Information to date and therefore do not believe this consultation to be as fully open and transparent as it needs to be. My own emails have been forwarded to Legal for consideration but this communication has been not reciprocated. I request this information as having substantial public interest.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/l...

Yours faithfully,

V. Colvin

Dear FOI Responses,

I would be grateful for an acknowledgement to my request for a review dated 18th April 2019.

Yours sincerely,

V. Colvin

Dumfries and Galloway Council

FREEDOM OF INFORMATION (SCOTLAND) ACT 2002

Thank you for your request for a formal review which was received on 18/04/2019 and is being dealt with. We will respond within 20 working days from the day after the request was received. A response to your request will be sent promptly, and in any event not later than 21/05/2019.

If you have any queries in the meantime, please do not hesitate to contact [email address].

Evans, Nick, Dumfries and Galloway Council

Dear Ms Colvin

 

Thank you for your e-mail dated 18th April 2019 requesting a review of the
way in which the Council handled your request, 400102, for information
under the Freedom of Information (Scotland) Act 2002 (FOISA).

 

Your request for a review concerns the Council’s application of exemption
S36(1) of the FOISA.

 

I have now concluded my review and I am satisfied that the Council has
applied, and appropriately withheld this information as it is exempt from
disclosure under S36(1) of the FOISA as such communications comprise:

 

i) communications with a professional legal adviser, such as a solicitor
or an advocate; ii) the legal adviser acting in their professional
capacity; and iii) the communications occurring in the context of the
legal adviser's professional relationship with their client

 

The exemption in section 36(1) is a qualified exemption, which means that
it is, as you state, subject to the public interest test set out in
section 2(1)(b) of FOISA.

 

The Council's position is that the public interest in disclosing the
information is not outweighed by the public interest in withholding it.
There is a strong public interest in Education being able to receive,
unhindered, full legal advice.

 

We would re-iterate that without such comprehensive advice being available
to Education, its ability to make fully informed decisions would be
restricted, which would not be in the public interest.  As stated before
we are mindful that, reasonable recently, Council Officers and yourself
have been working together to produce an updated version of the Home
Education Policy and we can assure you that we will endeavour to make this
process as fair and transparent as possible. To this end, legal advice on
the updated policy will be sought and shared and this advice will feed
into the work that is currently being carried out.

 

I trust that you are satisfied with this response and that the Council has
appropriately considered and dealt with your Review. If you are not
satisfied with the outcome of the Review, you have the right to appeal to
the Scottish Information Commissioner for a decision.

 

Appeals to the Commissioner can be made online at
[1]www.itspublicknowledge.info/Appeal or in writing to:

 

The Office of the Scottish Information Commissioner Kinburn Castle
Doubledykes Road St Andrews

KY16 9DS

 

Subsequent to the appeal process and the Commissioner issuing their
decision, you also then have the right to appeal to the Court of Session
on a point of law against the Commissioner’s decision.

 

Yours sincerely

 

Nick Evans | Democratic Services Manager

Communities, Dumfries and Galloway Council | Council Offices | English
Street | Dumfries | DG1 2DD

t: 01387 245925 (int: 63375) | dp: 205 | e: [2][email address

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Information (Scotland) Act 2002

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References

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2. mailto:[email address]
3. https://www.dumgal.gov.uk/privacy

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