r? From: RoserriaryAgnew Sen: 3 23 1:54 . an i I Margaret Keyse; Alison Davies; Sarah Hutchison . Subject: 2013.05.30 TC RAto 58 re, Please could you forward this ernail t0 the .116 as airecord of my phone call to this morning. - thanks . Rosemary 01334 464 620 A Spoke to'for approximately 15 minutes about theHecision. Iarn - . sympathe to to their ?concerns but felt we had dealt Wit this case operly and that the onus was on Ministers to say they wanted elements of a submission to be kept - con?dential. .a - . Main points Were: . My position is we can?t tweak the wording because that is effectively changing the decision: To change as they suggest is more than simply correcting typos. View is we can. I invited them to pay for me to take external legal'adyice on that if they felt strongly about it: but I was not going to do that for myself as I am clear about mi position. I also pointed Out that changing the wording now, would alert 0 the fact something had changedwhich could carry reputational risks to me for net eing seen to be independent. . I explained that other circumstances Where I Would consider not using information provided in if the authority asked me not to, for Whatever reason. I pointed out that the onus was on the authority,'the Ministers in this case, to alert me, not for me to second-guess. This is set out clearly in our letter to them inviting comments under 349 Where we state Where the Commissioner considers that the disclosure is necessary for discharging her functions under EIRs, some of the . information contained inthe submission may be shared with the applicant to allow . earlier points about him/her/it/th-em to comment on releyant matters. Similarly, Where the . Commissioner considers it necessary, the contents of the will be referred . . .n .. . .- I While your a'utheria?s be taken into acme, the ?nal.- deans: on Whether inform??OIl will be disclosed will - . be the Cominissioner?s As there had been no request to keep this element oi the . submission con?dential (see also point 5) we did net automatically consider doing so: . I explained that I had gone?on to consider this morning in light of this issue Whether it was reasonable for Ministers to have been aware 0f how the Submission miglit'be used, notwithstandhig the issue of vs-p eci?cally for things who kept con?dential. Ihad been through a number (if our decisions f1me the past 121110111113 Concerning.- section 12 and concluded that Waters. sho?ld be familiar With how we Word such decisions and therefore him We use submissions examples are Rule and Special 1 if Adv-isms diary, 195/2012 Iand-fol-ejg? expenses travel: l60/2i312 a Implementation of Rial: assessment tool. - out that at the meeting earlier in the Week, SG told us that approves 'the approach take and so in light of the previous points-?e 'Wfii?ii?liayehad no reason-to} wanted to make parts. of the. Snbtoission Vcbii?dentialjin order {boas conoemed that paid only - have approved: the would be used.? I i?f?ireii back to theirs to apply, how Ministers should be aware from earlier cases 3 things and that it was an issne for them not Ina. There was an inference that we were trying to make a point with this decision. I assured at was absolutely not the case. we dealt with it in exactly the saine way that we - deal with all section 12 Cases, referring back to the previous points saying if they compared it, they. Weald seethat is the case. I do not have a vested interest beyond being fair- and consistent Which I felt I had been in light of their submissions especially- as they had been at such great pains to tell me that the?pproyed their. approach. - - aid that I had not paid ehough attention to the very sei'isitive issue-o ISaid I appreciated that they were concerned but: a. I was and am only too aware but as explained above, I saw no reason to question the use of the submission in this case It highlighted the importance of and applications on a caSe?byvcase'basis. I cannot take the approach that because something is senSitiVeit should automaticallybe considered as part of my decision making, nor should-it automatically prompt me or my staff into questioning the submission 11113 is clearly on the authority: It may be that they Wish reference tog,- submissions to apply to eyery Case 5.. - effectively treat the issue 0 involving 'but it is for them'to argue it. each time in the context of the ease. - Implying '1 nto account automatically was inappropriate. I am reqire_ independent and impartial. If I were to an overriding public interest argument (or harm argumen . not be exercising my-powers properly and it would oeitainly'not be impartial or independent. rm ?2 2 To: Rosemary Agnew From: Margaret Keyse Sent: 04 June 2013 10:03 Subject: RE: Text 5-3: for discussion Great email, Rosemary. I?ve made one very minor change (in blue). If you could copy me?into the email when it?s sent, I?ll attach it to the. ?le and make sore Colin knows What?s going on. Thanks Margaret I. From: ROSemary Agnew Sent: 04J_'une 2013 10:24 - "ihapks for p?ur email. i thought it might be heipfu! to summarise where we arein one document - partly so we have a common understanding that is captured in one piece, and partly to help us prepare if either of us subsequently receives enquiries about the redaction. - - sequence'of events was: The $05 understanding-ls that Ministers wo?uid have requested this be kept confidential alt theitime? they. made th ins to the Commissioner, but for whatever reason did Having realised that {53: re in the decision they would now like it redacting as they believe it should idenCe. references to '5 have been proe In con I am sympathetic to the Ministers" position on this, but have some concerns and qUestions which i feel only fair to raise with Ministers before agreeing to the request. - The first point concerns'the Ministers? and Commissioner?s independence. It is in the public interest that the Commissioner is not only independent, but is seen to be independent. There is a reputational risk tolmy office that responding to such a requesi; will be seen as a loss of independence and bowing to .r'l?x i apologise if this seems overly pedantic, but given the sensitivity - .. - pressure from Ministers. it is also important to the reputation of Ministers that the Commissioner is viewed as independent and that requests such as this are made on sound technical grounds. The 'second point is a concern that publishing thedecision in redacted form will draw attention tolthe redacted information and in turn lead-to further information requests of both my office and'the Ministers. in order that we are-prepared to reply to such requests appropriately, could Ministers please set out the reasons they wish the information to remain confidential, as they Would have at the time . _it was provided to her.. i am not seeking along detaiied response that might be given if applying a exemption, but a statement that sets out the Ministers? position on Why they would have an expectation of confidentiality, making reference to the type of information and whyit should be redacted. it: the moment, I heiieve it to be not only?in our respective itres, in the interests FOISA operates in?ipa rtially. - i will do my best to respond to you as quickly as possible With a view to resolving it this week, but please note [am away from-the office a iot from Wednesday lunchtime, for the rest ofthe'week and will not be available at ail on Thursday" afternoon. Rosemary Agnew Scottish Information Commissioner Office of the Scottish Information Commissioner Kinburn Castle Doubledykes Road St Andrews, KY16 QDS Tel: 01334 464610 Fax: 01334 46461 1 Email: ragn.ew@itspublicknowledqeinfo Website: From: - Sent: 0 une 20 - To: Rosemary Ag Cc: Margaret Keyse;._ .- l. Subject: RE: Decision - scotiand.qsi.uov. uk: Rosemary Thanks for your e-maili fully appreciate your concerns about ensuring that the Commissioner is seen to-be independent I can assure you that nothing we are proposing is intended in any way to interfere with that independence The redactions we have suggested do not affect the Decision itself and I presume you Would act in a similar way if someone else (whether an applicant or a?public authority) requested redactions from a-Decisionfor particular justifiable reasons. 591.3? 2 In relation to your second question, for your intormation-(rather than for divulging more its! i .. 688 why We. Ii--teto red as Mause- the (For pests-a1 eons, we Viewth I h? I exception. tofthis requirement in relation to appeals, both given your powers under FOISA and to help us in making our case where relevant in appeals.) in relation to any eXte?r'nal queries regarding why the material has been redacted, am content for to note that the Scottish Government requested some redactions to the text (and if you wish to refer ueries on to us). Our proposed line would be that we do not comment on the details ob In the event of any FOI requests . regarding the redactd that heet' would be appropriate beca ould substantially prejudice the effective conduct pa 1 sus ed last week why it would not be possible to use the 5.313;; in this type of casef . in: relation to your summary of taken on board your point about the need to make clear in each appeal case where there is material which we do not Want i included in the Decision will 'seek to do that, although was underthe. impression that, given that we. still have a difference of views over the interpretatic?m of section 45 we h-ad?made clear that we did not wish any information from our submissions to bedivulged without our explicit consent (beyond what is necessary in order to justify your decisions) so, to that extent, we 'would not agreewith the position set out'in the summary. Previous decisions on cost grounds where information provided by the Scottish Government was replicated in the Decision notice did not relate to where there are particular sensitivities and we would therefore not have expeo Use to be-used as precedents. lo urstod that your office was alert to the particular sensitivities {17.2" - . I am of course happy. to discuss-this further if you have any?queries. I Best regards ree!em 'tion Unit Scottish Government: . St: Andrew?s House Regents Road mama an: 3133 Ta: 0151 244?4605