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“Sensitive” ScotGov documents cast new light on Ministers’ & SPADs’ FOI role

Newly released documents, obtained as a result of two appealed FOI requests, show that Ministers and Special Advisers have been deeply involved in the withholding of information from the public, sometimes despite the protests of civil servants – including those in the government’s own FOI Unit.


As this is rather a long post I’ve broken it into sections.

Background

Requests for Information

The New Documents

Inside the Briefing Documents

Some Final Thoughts

Download the Documents


Background

Back in 2017 journalists from across Scotland signed an unprecedented open letter condemning the Scottish Government’s handling of FOI requests. The letter was published by CommonSpace and The Ferret on 1 June, 2017 – it lead to a debate in parliament (following which a motion criticising the Scottish Government was passed unanimously) and, ultimately, the commencement of a high-level investigation from the Scottish Information Commissioner (SIC).

That investigation found that the Scottish Government had been operating a two-tier FOI system in which requests from journalists (as well as political opponents) were expressly subject to additional ‘clearance’, a practice with no basis in law. The role of Special Advisers was also scrutinised. The government was required to make changes to various aspect of its policies (the first attempt at which was rejected by the SIC).

You can read the full intervention report here.



Requests for Information

On the 3rd of August 2018 I submitted a request to the Scottish Government seeking the release of the following information:

All internal communication involving Scottish Ministers, Special Advisers and communication staff in relation to:

  1. The letter, published 1/6/17, raising concerns of journalists regarding the Scottish Government’s FOI policies
  2. The SIC intervention into the Scottish Government’s handling of FOI requests, announced in November 2017 and for which the final report was published on 13/6/18

The time frame for this request is 01/06/2017 to 20/06/2018.

(NB: I had originally sought to include senior Civil Servants in this request but was advised that the government would refuse to respond to this request as it would apparently breach the cost threshold for FOI requests)

The government responded to this request on the 31st August 2018, dealing with each part individually.

In relation to part one – regarding the open letter from Scottish journalists – they said this:

While our aim is to provide information whenever possible in this instance the Scottish Government does not have the information you have requested because there was a nil return on thorough searches conducted.

And for part two – regarding the Scottish Information Commissioner’s investigation into the government – they said:

While our aim is to provide information whenever possible in this instance the Scottish Government does not have the information you have requested because there was a nil return on thorough searches conducted.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

Some of the information you have requested is available from the Scottish Government website https://beta.gov.scot/publications/foi-18-01655 . Under section 25(1) of FOISA we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website listed then please contact me again and I will send you a paper copy.

So, aside from the contents of some correspondence with the Scottish Infomation Commissioner (which is the topic of the FOI response linked to above) the Scottish Government claimed to hold absolutely no internal communications in relation to either of the topics featured in my requests. Nothing at all.

Unsurprisingly I found this difficult to believe. So, on the 6th September 2018, appealed both decisions, pointing out that: “I don’t think that any reasonable person is going to believe that ministers, their special advisers and communications staff did not internally discuss either the letter in question or the SIC intervention over the course of a full calendar year.” I also asked the government to be clear about whether or not such information had simply been deleted.

I received a response to these appeals on the 2nd October 2018 in which the government once against insisted that it simply did not hold any of the information I had requested, even when “deleted items” had been searched. Once again, I simply didn’t believe that this could possibly be accurate.

Nil response after review

One of the two review responses confirming the government’s position – that it held nothing in relation to my requests. The second review response used a near-identical form of words.

But this wasn’t the end of the story because, when I submitted the above requests to the Scottish Government on the 3rd of August, I also submitted two parallel requests. I asked for exactly the same information but added 5 words which, it turns out, were absolutely crucial:

All internal communication held by the FOI unit involving Scottish Ministers, Special Advisers and communication staff in relation to:

  1. The letter, published 1/6/17, raising concerns of journalists regarding the Scottish Government’s FOI policies
  2. The SIC intervention into the Scottish Government’s handling of FOI requests, announced in November 2017 and for which the final report was published on 13/6/18

The time frame for this request is 01/06/2017 to 20/06/2018.

To be absolutely clear, this specification should not have been necessary. The FOI Unit is part of the government so the original requests should have caught any information held by this particular department. But, for some reason, they didn’t.

The government responded to this request on the 3rd September 2018. Having previously told me that no material was held, TWO-HUNDRED AND THREE PAGES of material were suddenly made available to me.

Of course the government had redacted a lot of the information so I submitted an appeal, arguing that the exemptions had been applied over-zealously and that the public interest would clearly favour greater disclosure given the nature and seriousness of this issue.

The government (finally) responded to this request for a review on the 22nd October 2018. Here is the full response:

20181022 FOI_181_2110 and FOI_18_02111 review response - final - GWC-page-001

20181022 FOI_181_2110 and FOI_18_02111 review response - final - GWC-page-002

20181022 FOI_181_2110 and FOI_18_02111 review response - final - GWC-page-003

20181022 FOI_181_2110 and FOI_18_02111 review response - final - GWC-page-004

20181022 FOI_181_2110 and FOI_18_02111 review response - final - GWC-page-005

20181022 FOI_181_2110 and FOI_18_02111 review response - final - GWC-page-006

20181022 FOI_181_2110 and FOI_18_02111 review response - final - GWC-page-007

I think a few things are worth noting here:

  1. I make extensive use of FOI and I can just about follow all of the information provided. This “final” response has been made incredibly complicated by the government’s earlier actions, and I wonder whether someone coming to FOI for the first time would have had the slightest chance of getting through all this (I certainly couldn’t have a couple of years back).
  2. Just look at the scale of the corrections required here, every one of which is a sign that the original response to me did not comply with the law.
  3. A significant quantity of new material – originally deemed too sensitive for publication – has now been released…

The New Documents

Of the information now available to me about the government’s handling of this (ongoing) controversy, by far the most interesting is a collection of documents labelled “OFFICIAL – SENSITIVE”. They are briefing documents, issued to Ministers and Special Advisers in advance of their interviews with the Scottish Information Commissioner.

These documents provide “information about individual cases” which investigators had indicated they may wish to ask about and provide clear timelines for a number of contentious FOI cases.

You can view each of the documents as they were provided to me by clicking on the appropriate link at the bottom of this post at the bottom of this post; however, there are some specific parts of these documents that are particularly note-worthy, with screenshots of these sections – and commentaries – available below.

But before we get to that there are a few of things to bear in mind:

  1. These documents were created for the specific purpose of preparing individuals for interviews with the Scottish Information Commissioner. The documents make clear that the contents are the FOI Unit’s assessment of several FOI cases identified as being of interest to the Scottish Information Commissioner.
  2. These briefings do not seem to have been provided to all interviewees, a full list of which is also available: List of SIC interviewees. It seems that they were provided to individuals who would be asked to answer questions on cases identified by the SIC.
  3. Even redacted versions of these documents do not seem to have been included in the original FOI response, meaning that the government has now – having been challenged – accepted that it did not apply the law correctly in completely withholding this “sensitive” information.
  4. The documents contain explicit examples of SPADs blocking the release of information and of the Scottish Government knowingly and deliberately breaching FOI law.
  5. These documents don’t seem to have been released when communication between the Scottish Government and the SIC was requested at an earlier stage, which suggests that they may not have been available to investigators. Although they would have had access to the source material used to generate these documents, it is remarkable to see just how candid the government’s own officials were about failures to uphold FOI law. Consequently, it is also worth asking whether knowledge or sight of these documents might have altered either the line of questioning during the interviews or even the final contents of the commissioner’s overall intervention report into the Scottish Government’s handling of FOI.

Inside the Briefing Documents

John Swinney

The briefing provided to John Swinney concerns three FOI requests – in all three cases I was the person seeking the information. The document is incomplete as the government has withheld some information, specifically the “FOI Unit assessment of potential matters for discussion” – this will soon be the subject of a further appeal to the Scottish Information Commissioner.

The first of these requests (FOI/16/02132) concerned the Scottish Government’s standardised testing system and highlights the significant role that Special Advisers appear to have played in an (ultimately unsuccessful) attempt to keep material out of the public domain:

Swinney 1

Swinney 1-added

It is clear from this information that, had it not been for the influence of Special Advisers, the information from the ‘risk register’ in question would have been released to me in response to my initial request. It is worth noting that this material was, eventually, released to me after I took the case to the Scottish Information Commissioner, who was critical of the government’s handling of this case, confirming that the government’s application of the law had been incorrect (and that the original case handler, not the Special Adviser, had been correct).

The second case (FOI/17/01247) in Swinney’s briefing concerns a request in which I sought records of meetings and communication between the Scottish Government and Teach First, an issue which generated headlines in national media. In this instance, John Swinney personally intervened in an attempt to prevent the release of correspondence between the government and Prince Charles (as well as his private secretary, Mark Leishman). The email from Swinney’s private office stated that he would “prefer” is this information were withheld:

Swinney 2

You can read more about this matter here. Once again, it is important to note that this information was eventually released to me, leading to further scrutiny of both the Scottish Government and the Prince of Wales.

When asked about this matter during his interview with the Scottish Information Commissioner, Swinney blamed his Private Secretary, whose “unfortunate wording” had “caused concern”. The DFM claimed that he was simply concerned that officials had failed to “consider” the Royal Household exemption (when dealing with material from the Prince of Wales’ Private Secretary).

Swinney extract 1

By way of follow-up Swinney was asked whether he believed that the exemption did apply, but an answer to this question does not appear to have been forthcoming.

Swinney extract 2

The third and final (FOI/17/01769) case from Swinney’s briefing document concerns what is now sometimes referred to as a ‘meta-FOI’. In it, I asked the government to provide me with information about the role of senior civil servants, communications staff, special advisers and ministers in handing a number of my own FOI requests. It was, ultimately, the starting point for much of the current scrutiny of the role of Special Advisers and ministers in the FOI process.

Long story short: the government tried to withhold the key information and lost because the Scottish Information Commissioner was “unconvinced” by their attempts to apply an exemption.

Swinney 3

Download the Documents


Keith Brown

This briefing, like John Swinney’s, concerns three specific FOI responses. Interestingly, however, the “Potential matters for discussion sections” have not been redacted (suggesting that there is something particularly significant being withheld from the documents concerning the DFM).

The first case (FOI/17/00406) outlined in this briefing relates to the Enterprise and Skills Review, with the requester (a Lib Dem researcher) seeking copies of correspondence and a list of meetings between the Scottish Government and the Scottish Funding Council.

Brown 1

There are two clear issue here. The first is that information was withheld from the requester “in accordance with Stewart Maxwell’s views”. The other is that Keith Brown’s office appears to have sat on a response for nearly two months, despite the statutory response deadline have already been breached when they received the relevant documents on the 20th of March 2017. Though I can’t be sure, it seems to be the case that the requester did not submit an appeal against the withheld information – based on this document they certainly should have, but of course they couldn’t have known that at the time.

The second case (FOI/17/00844) dealt with in Brown’s briefing requested “a copy of the agreement which saw Transport Scotland/the Scottish Government buy Glasgow Prestwick Airport from Infratil for £1 in 2013, including any contract or letter of agreement which indicates the terms of the deal.”

The main issue with this case seems to have been the failure to respond within the statutory timescale (it was more than a month late) and this is certainly what the FOI Unit identified as the likely matter to be raised during the investigation, but the use of the National Security clause is also, at the very least, an interesting additional detail.

The third case (FOI/17/01567) referenced in the briefing to Keith Brown is a big one. It came from a Guardian journalist and focuses on information linking Prestwick Airport with Donald Trump, his businesses and the US Government.

The FOI Unit suggested that questions may be asked about delays in dealing with the case, and that may be true, but there’s another, arguably more pressing, issue on display in this particular instance.

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NB: These are extracts from the same document but, as you can see from the dates above and below, part of the process in question is not shown here.

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Obviously, the usual questions about Special Adviser influence (note the underlined part in the bottom box) and general FOI handling are as relevant as ever, but it is particularly concerning that, on two occasions, this FOI response was influenced without proper records being kept.

SPAD comments that are “not on file” are bad enough, but questions really must be asked about Brown’s role in answering both the initial request and the subsequent review (this may also apply to Stewart Maxwell, but the documents available do not make clear whether a different Special Adviser was involved at each stage of handling this request). This is particularly important when part of this interaction took place via telephone calls where the details have, unsurprisingly, not been recorded.

Download the Documents


Shona Robison

The briefing documents for Shona Robinson deal with just two FOI requests, although the second actually concerns decisions made by Aileen Campbell (the topic of this request was deemed to be “within Ms Robison’s portfolio responsibilities”).

The first of these (FOI/17/00947) concerns a request for the release of “reports received by Paul Gray’s office from the NHS Chief Executives’ Group from 2013 to September 2016.” The Scottish Government has, so far, refused to release this document in full, redacting key comments regarding the decision-making process. Nonetheless, the material available shows clear evidence of political influence over FOI releases.

Robison 1

At this stage, with two relevant documents have been identified, the FOI Unit has, it seems, been absolutely crystal clear that both should be released. It’s especially important to note that they reject the application of ‘section 29(1)(a)’ exemptions. Why? Well, take a look at what happened next…

Robison 2

Although we don’t (yet) know exactly what Robison said, because the government hasn’t (yet) released this information, we do know that, in the end, the two documents in question were withheld despite the advice of the FOI Unit. It also appears to be the case that section 29(1)(a) exemptions were applied, perhaps at the insistence of Robison, and – bizarrely – that officials were asked to offer “contributions to explain” this.

The requester refused to accept this and demanded a review, and then things get even more interesting.

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Once again, front line officials and the FOI Unit believed that the requested documents should be released; once again, key comments have been withheld by the Scottish Government; once again, we see that a political individual – in this case a Special Adviser – intervened and tried to have both kept secret using Section 29(1)(a) exemptions.

In the end, after a battle which seems to have been entirely unneccesary, and which appears to have been brought to a conclusion only when the threat of a judgement by the Scottish Information Commissioner was brought into play, one of the papers was released in full while the other was redacted (I cannot find the documents for this request on the government’s website so do not know how extension this redaction was).

The second case (FOI/16/01545) from Robison’s briefing was actually answered by Aileen Campbell, former Minister for Public Health and Sport (this area was within Robison’s overall portfolio responsibilities).

Campbell’s role – and understanding of the law – is worth highlighting (look at the end of the timeline below) but, to be honest, this case is mostly about the actions of Special Adviser Davie Hutchison.

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Robison 5

It is very clear from this information that the response in question was significantly delayed because of Hutchison’s insistence that some material be kept secret, despite the fact that both the case handler and the FOI Unit believed that it should be released. In the end, although some information was released, he seems to have been successful in having other information withheld.

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Davie Hutchison

Since we’re already talking about Hutchison’s involvement in FOI it makes sense to look at this briefing document next.

The first of these (FOI/16/00813) is, to be blunt, absolutely damning – and not just for Hutchison himself. The request centred around correspondence between the government and NHS Lothian regarding the ‘treatment time guarantee’. It was initially submitted in May 2016 but the response was delayed by a request for clarification of the terms of the request.

Hutchison 1Hutchison 2

It’s worth noting – as the FOI Unit did in preparing this briefing – that the application of exemptions became “more extensive throughout January and February” as Hutchison kept on trying to withhold more and more information.

What happened on 9 February, however, is simply outrageous.

As we can see in the screenshot above, the FOI Unit explicitly informs the Special Advisers that the changes they have requested would mean that the response would “not properly comply with FOISA” (ie. it would break the law). They also laid out their reasons for this, although they have not been made public (yet).

Incredibly, however, the FOI Unit seems to have decided to simply allow Hutchison to have his way “rather than further delay the response”, noting that if they received an appeal they would be forced to release the information as requested. So the end result is that the Scottish Government issued an FOI response which it knew did not comply with the law, on the basis that if the requester complained they would change their approach. According to the files available, the requester did not seek a review.

Obviously, the officials in question should not have made these changes but it is clear that they had come under significant pressure. If the Minister in question (presumably Shona Robison) was aware of this, yet still cleared the response, then they have very serious questions to answer. Either way, the role Davie Hutchison played in this case demands some serious scrutiny.

The second case in Hutchison’s briefing has already been dealt with as it is also the second case from Robison’s briefing (scroll up to see it).

The third case (FOI/16/02137) from this briefing concerned the Vale Community Maternity Unit at Vale of Leven Hospital. Once again, Hutchison was heavily – and repeatedly – involved in an attempt to block the release of information, despite the views of the case handler and the FOI Unit.

Hutchison 3

At the first stage of this process the case handler not only plans to release all relevant information, they even note that “there was nothing particularly sensitive or contentious” contained within the materials. That didn’t stop Hutchison from ‘suggesting’ extensive redactions.

Hutchison 4Hutchison 5

It is once again quite clear that the “advice” being offered by Hutchison is, at least in the view of the officials dealing with the case, not optional but rather an instruction. And once again, the government issued a response to an FOI request knowing that, if its approach were challenged, they would have to release the information in question.

This case was eventually considered by the Scottish Information Commissioner who accepted that two sentences in one of the documents could be withheld – the government was forced to release the rest, as the FOI Unit had expected.

The fourth case (FOI/17/00171) from Hutchison’s briefing documents concerns government communications with an unidentified individual regarding ‘NHS Scotland Productivity’ and the ‘2020 Vision Advisory Board’. Once again, Hutchison is seen to be exercising extensive control and seeking to block the release of information.

Hutchison 6Hutchison 7

As you can see, the case handler’s response to Hutchison’s position has been redacted, but it is quite clear that they did not agree and attempted to fight their corner. The very next day they had a meeting with Hutchison and the SPAD Private Secretary (PS), following which the PS “revised the draft response”, then telling the case handler that they could submit the draft for Ministerial approval “subject to the changes proposed being taken on board.” It would require a very generous interpretation for this to be seen as anything other than an instruction.

Hutchison new1Hutchison new2

After the ‘proposed changes’ had been made, and following the clarification of two details, the Minister (Shona Robison) cleared the response for release; however, the document still had to be changed again before being released after the FOI Unit intervened, raising particular concerns about the covering letter to be issued.

But – after all that – when the case reached the Scottish Information Commissioner the government decided to release “all information requested”. For those who have never interacted with the SIC, I should explain that this does not necessarily mean that the government simply came to its senses – they may have simply been advised by the SIC that they faced an unfavourable ruling and decided to cut their losses.

Ironically, during his interview with the Scottish Information Commissioner, Hutchison talked about having a “clear obligation to get it right rather than put something out we know to be wrong.” That obligation does not seem to have applied to this particular case.

Hutchison was also asked how he keeps his role as a civil servant separate from that of a political adviser while handling FOI requests. He replied: “They’re not separate. They’re the same thing.”

Oh, and by the way, this is from Davie Hutchison’s LinkedIn page:Hutchison Linkedin

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Liz Lloyd

Lloyd is the Chief of Staff to the First Minister, Nicola Sturgeon, and also runs the Special Advisers office of the Scottish Government.

The first case (FOI/17/00179) concerns a letter sent by Nicola Sturgeon to Hilary Clinton after she lost the 2016 Presidential election to Donald Trump.

Lloyd 1

As the FOI Unit has noted, there is a significant issue with a delay in this case, with SPADs clearing the response on 31 January (by which time the response was already late) but the response not being issued until 1 March. What happened? Well, we simply don’t know – because records of the process have not been kept.

As the documents for this FOI do not appear to be online we don’t know what information was released or what exemptions may have been applied; the government’s failure to keep track of the case itself means we don’t know the extent of Special Adviser influence on the process.

The second case (FOI/16/01335) in Lloyd’s briefing pack focuses on the work done by the Scottish Government on a written constitution for Scotland prior to the 2014 independence referendum. It reveals what looks like an extremely serious breach of FOI law.

Lloyd 2

The first issue here is that the deadline for responding was not met despite the case handler having completed a draft response more than a week in advance. Perhaps most striking, however, is the confirmation that “the case had been discussed at a meeting with special advisers”. Despite such high-level attention, however, and regardless of strict legal deadlines, it is noted that a response to the official handling the case is “unlikely before 7 November.”

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Lloyd’s comment on 16 November is extraordinary and extremely serious (and, thanks to the official who produced this document, a direct quote rather than a paraphrase). Having been told by the official that they plan to issue the response on 18 November, the First Minister’s Chief of Staff replied:

“I’m not committing to it going out on Friday at this point. It’ll go out when we’ve had a chance to ensure it’s got a proper handling plan.”

This is a clear example of a Special Adviser blocking the release of an FOI response until lines have been prepared. In effect, she is saying that the information cannot be sent until they’ve decided how they might spin it.

Lloyd was asked about this case directly during her interview as part of the FOI investigation and tried – without any success – to explain away this glaring breach of the law.

Lloyd extract 1

I’m not sure why Lloyd thinks this explanation makes things any better. Her clarification in fact confirms that, unless press lines were ready for Friday, then the FOI response would not be issued on that day. In this case a clear link is being drawn between the issuing of an FOI response and the development of a ‘handling plan’ for the information, with the former clearly dependent upon the latter.

FOI Unit officials themselves flagged the “impact of arranging a comms handling strategy on issuing the response” as a likely matter of interest for investigators.

This is made particularly striking by Lloyd’s response when asked about a potential “lack of understanding about the role of SPADs”:

Lloyd extract 2

“SPADs can advise but can’t instruct.” Right.

The third case (FOI/16/01014) connected to Liz Lloyd also involved another SPAD (who wasn’t interviewed) – Katy Bowman. The requester sought the release of briefing material prepared for Nicola Sturgeon in advance of a meeting with EU officials and MEPs.

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What is interesting here is that Bowman initially asks the case handler to release more information, but when Lloyd becomes involved the conversation turns to “more extensive redactions”. Her response to the FOI Unit’s advice has also, ironically, been redacted, as has the reply sent by officials:

Lloyd 6

The government’s decision to withhold material from this section of the documents makes it difficult to be sure of what happened, what was withheld or how it was justified.

What we can see, however, is that the issuing of the response was delayed for more than 2 weeks (5 August to 22 August) because the comms team had decided not to proceed until a “related request” had received “clearance from FM”.

The fourth and final case (FOI/16/01414) in Lloyd’s briefing came from Sputnik News and concerned physical security breaches at government premises. It provides explicit evidence of SPAD exerting enormous control over FOI responses and also raises questions about the role of the Communications team.

Lloyd 7

As we can see above, the ‘Corporate Comms’ team got involved early on in this process, contacting the official responsible for the request and, strangely, inserting themselves in the process by asking that the draft response be sent to them first, at which point they would “forward to special advisers for clearance”.

On the face of it this is probably just about defensible – if they were just asking for sight of the material so that they had plenty of time to develop their response that would probably, just about, be alright.

But…

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The intervention of the Comms team on 24 October, where they state that “they disagreed with the proposed approach”, is concerning. Communications staff should have no role in making decisions around FOI requests – they should simply prepare lines in response to the information.

The events on 6 December are also striking because, as with cases already explored in this blog post, the case handler is concerned that the alterations being requested by SPADS “meant the response was not in line with the initial request”.

And then things get even more interesting…

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It is 100% clear here that the Corporate Comms team has not only blocked the progress of an FOI request, it has also demanded SPAD “clearance”. The (unnamed) Deputy Director’s email is a clear attempt to fight against undue influence includes pointed criticism not just of the apparent clearance process but also of the changes being demanded by SPADs (which seem to be making the request unnecessarily complicated and, as a result, far harder to answer.

The response was finally issued to the requester on 4 January 2017, with no request for review appearing in the records.

This is one of the cases where a more extensive release of information – including the email exchanges between different departments – would clearly be in the public interest.

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Colin McAllister

As Head of Policy, and Senior Special Adviser to John Swinney, McAllister is a powerful figure in the Scottish Government. His briefing pack focused on four FOI requests, although the second of these (FOI/16/01335) has already been examined above, having been included in Liz Lloyd’s briefing.

The first case (FOI/15/02007 plus FOI/15/02008, FOI/15/02009) related to McAllister dates back to 2015 and concerns Alex Salmond, Nicola Sturgeon and John Swinney’s meetings with Angus Grossart (although his name has been redacted from the documents below the original requester has confirmed that meetings with Grossart were indeed the subject of this FOI).

The process starts badly, with the government failing to meet the legal deadline for a response and failing to explain the delay.

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And things continue in that vein…for nearly a year!

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More than 2 months after the legal deadline to respond the FOI Unit is having to push for a date on which information can be released, warning that the failure to do so will simply add further problems.

But it gets them nowhere.

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It being “difficult for Colin to give a date”, and “impossible to commit to a date for responding”, clearly highlights the control being exerted by McAllister in this case. The case handler can be seen repeatedly attempting to get a response to the requester and, it seems, getting nowhere.

Note also that the Private Secretary to the Special Advisers office explicitly talks about the need for McAllister to have “cleared the amended response”.

The process continues for another couple of weeks…

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Unsurprisingly, the requester took this matter to the Scottish Information Commissioner. This happened on 14 April, with the appeal highlighting the delay, the lack of explanation for that delay, and the claim that information about these meetings was not held.

The SIC found that the government was right to state that information about these meetings was not held (hardly a surprise, given the Scottish Government’s track record in that area) but was absolutely scathing about the handing of the case:

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The Scottish Information Commissioner’s full judgement on this case can be accessed here.

As already noted, the second case in the McAllister briefing (FOI/16/01335) has already been examined, having also appeared in Liz Lloyd’s briefing pack.

The third case (FOI/17/01547) deals specifically with the issue of Special Advisers ‘clearing’ FOI responses.

McAllister 6

Despite the case handler warning against an overly-narrow interpretation of this request, we can see above that Colin McAllister has been instrumental in an attempt to withhold the identified materials because, it is claimed, “special advisers do not clear FOI requests.”

But of course in the earlier case from McAllister’s briefing, we can see the Private Secretary to the SPADs office explicitly that a date for a release of information cannot be given until McAllister has “seen and cleared” the contents.

Anyway, the rest of this goes pretty much as expected. The requester asks for a review of the case and the new official, while explicitly asking for a check that other relevant material has not been omitted, proposes to “reinstate the case handler’s original approach as sent to special advisers on 18 July”.

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The highlighted information above is absolutely extraordinary when we remember that, as part of this response, Special Advisers had previously insisted that they do not “clear” FOI responses – yet on 14 August those same Special Advisers are instructing officials “not to send the submission to the Minister”, and on 17 August they adopt the position that the material can only go to the FM and DFM “subject” to their changes being accepted.

The fourth and final case (FOI/17/02107) in McAllister’s briefing relates to a request that I submitted in September 2017 in connection with my investigation into Teach First’s attempts to expand their operation in Scotland.

McAllister 8

Once again the influence of Colin McAllister on an FOI response is clear to see. On this occasion, he sought to have the entire document in question withheld from me using an exemption that was “not applicable”. The FOI Unit then “gave advice on attempting” to apply a different exemption, but even at this stage advised that this wouldn’t stand up if challenged.

Unsurprisingly, I did challenge the use of the exemption; equally unsurprisingly, I won. The document was subsequently released in full, despite the interference of McAllister.

McAllister 9

Interestingly, it appears that the response to my appeal was not submitted to SPADs such as McAllister for clearance (or, if it was, this has not been recorded) – instead, the official seems to have gone straight to the DFM, John Swinney, who cleared the release.

You can read the story that came from this disclosure here.

During his interview with the SIC, McAllister actually raised the events of this case. It is striking, not to mention concerning, to see that such a senior figure in government, with significant influence of FOI disclosures, still doesn’t understand why he was wrong – a fact made clear by his attempted, and wildly flawed, explanation.

McAllister 1

As it happens, the assertion that this one story stopped Teach First bidding for a contract, though flattering, is rather wide of the mark. Scotland’s universities had unanimously agreed not to work with the organisation, and serious questions were being asked about their lobbying operations, in particular the use of Prince Charles to help them gain access to ministers, as well as the organisation’s attempts to circumvent the tendering process entirely. As far as Teach First themselves go, they said at the time that they were pulling out because the Scottish Government had rushed the development of the new programme. They also raised concerns about the financial aspects of the contract.

Download the Documents


Stewart Maxwell

This briefing document contained information on two cases. The second has already been examined (it was also the first case in Keith Brown’s briefing), while the first (FOI/16/02147) is closely linked to the same topic and minister.

Maxwell 1 new

Maxwell 2Maxwell 3Maxwell 4

Maxwell “suggested” that the case handler withhold more information, but it ended up being disclosed after an appeal. As the FOI Unit has highlighted, the “reasons for withholding information” are therefore of interest, given that they were ultimately too flimsy to survive once the matter had been referred to the Scottish Information Commissioner.

Keith Brown’s apparent wish for the material to be released on a specific day is also a matter of concern – despite the information being cleared on a Tuesday, it was not issued to the requester until the Friday (as Brown had apparently wanted).

And, of course, the ridiculous delay in dealing with the case, significantly breaching the legal deadline for doing so, is entirely unacceptable.

Download the Documents


SPAD Office

As noted at the beginning of this post, the name (or names) on the final briefing document are redacted but, based on information contained in several documents, we can be relatively sure that this material was prepared for the member of staff in the SPAD Office (presumably the Private Secretary?) in advance of their interview with the Scottish Information Commissioner.

The first case (FOI/16/00432) relates to the “potential creation of a Scottish Monetary Authority”.

SPAD 1It gets off to a bad start when the request is, it seems, simply ignored. After that…well…things just get worse.

SPAD 2

Where to even begin with this? Between the 17th and 29th of March the new case handler (reviwer) and the FOI Unit worked together to produce a draft response to go to the requester – that response remained unsent for two and a half months following the introduction of SPADs and Ministers to the process. There is no explanation for “when, how or why the response was deemed to require the attention of the First Minister after her the DFM had already ‘cleared’ it. Most interestingly of all, the response was still “being considered” by one or more SPADs after the First Minister’s clearance had been given.

And amidst all of this the requester (quite rightly) went to the Scottish Information Commissioner, who pretty much immediately issued a judgement stating that the Scottish Government had failed to comply with the law.

But that wasn’t the end of the matter, because the requester then went back to the SIC seeking a review of the actual information disclosed to them.

SPAD 3

Then, on 1 March 2017, more than a year after the initial request had been submitted, the SIC ruled in favour of the requester and forced the government, finally, to hand over the information that had been wrongly withheld.

SPAD 4

And what did the FOI Unit make of all this when they were preparing the briefing? Well it seems they had the same questions as I do:

SPAD 5

The second case (FOI/16/01736) from this briefing focuses on the planned deal between the Scottish Government, Sinofortune China Railway and China Railway No 3 Engineering Group. That deal, readers may remember, was aborted following human rights concerns, causing considerable embarrassment for the Scottish Government.

SPAD 6

As with one of the Liz Lloyd cases, the obvious problem here is a near-total lack of information, making it impossible to know what on earth caused a delay, and consequent breach of the law, of more than 8 months. All we know about this case – aside from the delay – is that the process ended with SPADs and Comms staff arranging a handling plan, with the response itself issued four days later.

But if you want to see that response, here it is.

The final case (FOI/17/00171) in the SPAD briefing has already been covered as it was covered in the documents provided to Davie Hutchison. 

Download the Documents



Some Final Thoughts

There are two likely defences for all of this. The first is that the government is changing its policies in response to the SIC investigation – but in some crucial ways this is untrue. On the matter of SPAD and Ministerial involvement, for example, the government ultimately proposes to maintain the same flawed system, but within a more formalised structure.

The government would also likely attempt to remind us that Ministers and SPADs can play a role within the FOI system without automatically breaching the law, but this rather misses the point. The question is not whether they can be involved, but whether they should be.

The answer to that question depends on whether or not one believes that explicitly political actors can act is an entirely impartial manner when dealing with requests for politically sensitive information. I’d suggest that the answer to that question is pretty obvious.

During the SIC interviews the matter of ministerial clearance of FOI responses came up repeatedly. Various individuals defended it on the basis that Ministers need to know what information is being released, particularly if it is likely to be raised in parliament or by the press. This is, of course, true – but it does not follow that Ministers must also be involved in deciding what is released.

In defence of their FOI role, SPADs tended to argue that no one else in government possesses the same breadth of knowledge, and that their insights are, therefore, invaluable. Then again, they were hardly going to talk down their own importance, were they?

The Scottish Government has repeatedly asserted that SPADs don’t ‘clear’ FOI responses (at one point a government minister told parliament that they only check for accuracy) but, as these documents show, this is categorically not true. It may be the case that they do not technically possess any formal clearance powers, but the amount of influence they exert over the release or otherwise of sensitive information, and their function as ‘gate-keepers’ between officials and ministers (at points refusing to allow officials to submit material to ministers until specific changes have been made) means that they are in effect clearing FOI responses.

As one SPAD (Colin McAllister) said during his SIC interview, he and his colleagues are “precluded by the SPAD code from instruction” – yet there are numerous examples of SPADs doing exactly that in the cases above, which are themselves just a tiny snapshot of the total FOI requests handled by the Scottish Government.

There may well be times when one or more needs to be consulted (like any other government employee) as part of the process of answering a request for information, but that is a very long way from being a justification for the sort of routine, far-reaching interference on display in the documents above. Confirming to a case handler that some potentially relevant policy-development work is ongoing, for example, is not at all the same thing as telling them to apply policy development exemptions to a request before it can be issued.

The Scottish Government is responsible for ensuring the effective operation of Freedom of Information systems within their organisation but there seems no real requirement for this responsibility to be exercised in such a ‘hands on’ manner (either directly or in a delegated manner via SPADs). A huge range of non-governmental organisations are subject to FOI requests in Scotland and most seem to manage just fine.

A better approach, I believe, would be to regard Ministers as being responsible for ensuring that the right systems, people, training and support are in place to allow properly impartial civil servants to make decisions about the release of material – sensitive or otherwise – in line with the law. Such a change – preferably combined with far more transparent record-keeping – would be a significant step towards making information genuinely free.



Download the Documents

Click on the links below to download the briefing documents and interview notes featured in this post.

John Swinney: Briefing Document —- Interview Notes

Keith Brown: Briefing Document —- Interview Notes

Shona Robison: Briefing Document —- Interview Notes

Davie Hutchison: Briefing Document —- Interview Notes

Liz Lloyd: Briefing Document —- Interview Notes

Colin McAllister: Briefing Document —- McAllister interview notes

Stewart Maxwell: Briefing Document —- Maxwell interview notes

SPAD office: Briefing Document —- SPAD Office interview notes

Click here to download all referenced files at once

Click here to download all interview notes from the website of the Scottish Information Commissioner

FOI victory reveals the full extent of Teach First’s Scottish lobbying | Blog

Last week, in an exclusive story with Severin Carrell and published by The Guardian, I revealed that Prince Charles has finally admitted to lobbying the Scottish government, and in particular former First Minister Alex Salmond, in an attempt to help Teach First expand their operations into Scotland’s education system.

These latest revelations are part of a long-running saga around Teach First’s ambitions to gain a foothold north of the border. A six-month FOI campaign has generated numerous stories in both The Guardian and The Herald, highlighting the details not just of Teach First’s proposed Scottish operation but also the long-standing, well-connected and highly secretive lobbying campaign in which they have been engaged.


The stories:

11 August – The Herald: Student teachers in class after five weeks of training

12 August – The Herald: Teach First calls on government to delay fast-track teaching course

14 August – The Guardian: Scottish ministers refuse to release Prince Charles lobbying letters

15 August – The Guardian: Publish Prince Charles lobbying letters, Scottish government urged

26 August – The Herald: Teach First leaders ‘wanted teaching watchdog disbanded’

28 October – The Herald: Fast-track teaching scheme condemned by academics

28 October – The Herald: Top Scottish universities shun Teach First scheme

During this period I also published a number of blog posts providing additional details:

Revealed: meetings between the Scottish Government and Teach First

Tartan Teach First? A look inside the Scottish Government’s plans

Teach First, Ask Questions Later – full report and email exchanges

The Sunday Herald’s investigations editor, Paul Hutcheon, also wrote about Teach First’s funding and their attempts to withhold information from FOI responses – both of these stories are relevant to what follows.


Even when the latest stories were published, however, the Scottish Government was still attempting to withhold some information, preventing its release to the public. This is no longer the case, with the government having now formally backed down and provided all of the information requested.

I am therefore able to provide a new, complete timeline detailing Teach First’s attempts to lobby the Scottish Government in order to gain access to the Scottish education system, as well as full documentation for the organisation’s proposed new programme – ‘Teach for Scotland’:


Timeline

3 February 2009 – Joanne Lee of Teach First attempts to contact Maureen Watt, then minister for schools and skills, in order to set up a meeting with Teach First’s then Director of Leadership Development,  Professor Sonia Blandford.

Doc 36

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9 February 2009 – Scottish Government official Peter Allan replies to Teach First rejecting their approach. His letter states that “there is no current need for Teach First to be active” in Scotland and that “there is not a requirement for Mrs Watt to meet Professor Blandford to discuss her proposal at this time.”

~~~

16 March 2010 – Joanne Lee writes to the new education secretary Mike Russell (on behalf of Prof. Blandford) seeking to arrange a meeting between him and Brett Wigdortz (Teach First’s founder and, until recently, CEO). The email is sent on behalf of Prof. Blandford, includes press clippings from TES and the Economist and also references the fact that at that stage Teach First trainees had been unable to meet the necessary standards to become registered teachers in Scotland. Lee also lists the areas in which Teach First were operating and states that they would be interested in exploring how “Scottish schools might begin to share in this success.”

~~~

31 March 2010 – Mike Russell’s private secretary (Brian Taylor) responds to Professor Blandford rejecting the request for a meeting with the minister. Instead, Taylor writes that “officials from Learning Directorate, including Michael Kellet, Deputy Director, would be interested in meeting with you.”

~~~

9 June 2010 to 18 June 2010 – The documents show an interaction between Teach First representative Chloe Tait and Helen Reid of the Scottish Government’s Learning Directorate. This exchange seems to stem from a phone conversation between the two on 9 June 2010 to discuss Teach First “and in particular the funding contributions” involved. The interaction appears to end with Teach First being unable or unwilling to respond to some detailed questions about the funding aspects of their programmes, such as cost per participant and tutor salaries. They state that this because they relate to “contractual details which reside with our partnering universities.”

~~~

10 January 2012 – Joanne Lee once again writes to Mike Russell, this time following contact between Teach First and Duncan Hamilton, the former SNP MSP and political adviser to Alex Salmond. Lee’s email makes clear that Hamilton has acted as an intermediary between Teach First and the Scottish government. It is passed on to the Ministerial Correspondence Unit with the note: “Quick response required.”

Doc 29

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15 February 2012 – Mike Russell’s private secretary (Laura Holton) responds to Joanne Lee advising that “Mr Russell’s diary is heavily committed for the foreseeable future” but that “officials in the Learning Directorate would be happy to meet.”

Doc 28-2

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5 April 2012 – Brett Wigdortz invites Mike Russell to an “Evening Reception at the Scottish Parliament” facilitated by Lib Dem MSP Liam McArthur.

Doc 27

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13 April 2012 – Mark Leishman (former journalist and private secretary to Prince Charles from 2009 – 2017) writes to Mike Russell. The email is addressed to “Laura” Holton. It is clear that he has already been in contact with either Holton herself or someone else in the Scottish Government (“As discussed last week”). Leishman includes a letter and briefing from Brett Wigdortz of Teach First (see next entry). Leighman writes that he would be “delighted” to introduce Wigdortz to Russell. This document was originally entirely withheld by the Scottish Government.

Doc 25

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13 April 2012 – Brett Wigdortz writes to Mike Russell – immediately referencing the communication from Mark Leishman – once again seeking a meeting with the education secretary and providing a ‘briefing’ about the organisation.

~~~

1 May 2012 – Laura Holton responds to Brett Wigdortz, mentioning the covering letter from Mark Leishman, and confirming a meeting between the Teach First CEO and “Mr Russell’s officials” on 16 May 2012.

RA doc 24-page-001

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1 May 2012 – Laura Holton also confirms that Mike Russell will not be attending the Teach First reception at parliament (although the next document seems to contradict this).

Doc 26 Cab Sec letter 1 May 2012 meeting invite-page-001

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16 May 2012 – Meeting between Teach First staff and officials of the Scottish Government’s Learning Directorate. Shown below are the heavily redacted version of this document originally provided by the government (left) and the complete, unredacted version now available (right). This shows that, amongst other things, the Scottish Government wished to keep the words “very persuasively” out of the public domain. It also highlights that the government officials were willing to have “exploratory discussions” with councils with a view to “a pilot in academic year 2014/2015 at the earliest.” As you can also see below, the government attempted to withhold the fact that Mike Russell still had “concerns about the application of the scheme in Scotland” – indeed, this was the very last redaction to be removed.

~~~

19 July 2013 – Brett Wigdortz writes to Mike Russell once again requesting a meeting. A recent meeting between the then first minister Alex Salmond and Prince Charles is mentioned in the opening sentence, and Wigdortz is explicit about this being a “follow up”. The original, redacted version of the letter is shown alongside a complete version.

~~~

?? September 2013 – Mike Russell’s private secretary replies to Brett Wigdortz confirming that the minister “will be pleased to meet with” him.

Doc 19 Cab Sec Sept 2013-page-001

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30 January 2014 – Meeting between Mike Russell and Brett Wigdortz & James Westhead (both of Teach First). Official briefing notes specifically reference “a meeting between the First Minister and Teach First’s patron, HRH The Prince Charles, Duke of Rothesay” as part of the reason “why” this engagement has been arranged. Despite the presence of three senior civil servants, and 19 pages of briefing documents, no minutes of the meeting are taken. Once again, redacted and complete versions of the key document are shown below.

~~~

20 February 2014 – Mike Russel writes to Brett Wigdortz following their meeting. He outlines the situation regarding Initial Teacher Education in Scotland and states that he does not believe, based on their meeting, that there is a “viable proposal on the table” from Teach First. The letter also ends with a noticeably terse paragraph about Teach First trainees working in Scotland.

~~~

1 March 2014 – James Westhead writes to individuals from the Scottish Government, GTCS, East Ayrshire council and Glasgow City council recapping a meeting held on 25 February 2014. He states: “The meeting was convened by the GTCS – Ken Muir – to explore what the potential value-add to the Scottish system would be” from the establishment of a Scottish version of the Teach First model. A follow up email (which seems to have originally been withheld) between two Scottish Government officials seems to question the accuracy of Westhead’s summary: “Mmmmm. Some interesting use of phrases and words there.”

~~~

13 February 2015 – Brett Wigdortz writes to First Minister Nicola Sturgeon asking for a meeting.

Doc 15 - Letter from Brett Wigdortz to Nicola Sturgeon - 13 February 2015-page-001

~~~

30 April 2015 – Nicola Sturgeon’s diary manager (Craig Smith) replies to Brett Wigdortz rejecting his request for a meeting but leaving open the possibility of future dialogue if Teach First have now “developed a proposal that addresses Scotland’s unique challenges.”

Doc 14

~~~

3 February 2016 – James Westhead writes to Rachel Sunderland (Scottish Government). He states that Mark Leishman (the Prince of Wales’ private secretary) “mentioned that there might be interest” from the Scottish Government in a new meeting with Teach First. As shown in the next entry, this communication leads directly to a later meeting.

Doc 13 page 6

~~~

22 April 2016 – Meeting between Scottish Government officials (John Gunstone and Stuart Robb) and Teach First staff (James Westhead and Reuben Moore). No notes appear to exist for this meeting. Another government official – Clare Hicks – actually requests any notes about the meeting on 25 May, adding that “we will want to keep on file.” She receives no reply.

~~~

21 May 2016 – Nicola Sturgeon writes to Paul Drechsler (Chair of the Teach First Board of Trustees) agreeing to a meeting between the two.

Doc 12-page-003

~~~

26 August 2016 – Teleconference between David Roy & Stuart Robb (Scottish Government) and James Westhead & Jonathan Dando (Teach First). Notes include the following sentence: “We agree to ensure they had the opportunity to tender if we go don that route.”

~~~

21 September 2016 – Meeting between Nicola Sturgeon and Paul Drechsler. The official briefing notes that “Teach First have long held ambitions of exporting their model of initial teacher education to Scotland.” Despite the presence of a senior civil servant, and likely themes being “Reform to Scottish education, changes to Initial Teacher Education in Scotland and the possible role for Teach First”, this is classified as a “private meeting”. No minutes are taken.

RA doc 09-page-001

(Parts of the briefing documents were originally redacted by the Scottish Government. Both versions are shown below.)

~~~

25 November 2016 – Gareth Brown (of PR organisation Message Matters) writes to Craig Hancock (assistant private secretary to John Swinney) in order to arrange a meeting between Teach First and the deputy first minister. His email also includes a full briefing document for Teach First’s proposed ‘Teach for Scotland’ programme (a document which the government will later try to keep secret despite having already provided an entirely unredacted version).

~~~

10 January 2017 – Meeting between John Swinney and James Westhead (Teach First) & Peter Duncan (Message Matters). Remarkably, the document states that there are no “sensitivities” around this meeting, despite identifying Teach First’s ambitions to expand into Scotland, highlighting the fact that “over £1m of SG investment” is supporting the development of “new routes into teaching,”  and stating that this meeting is “to hear more about the work of Teach First and whether the organisation could play a role in the context of Scottish education.” The notes also state that the “Equality and Human Rights Commissioner for Scotland is now advising Teach First” although she is unable to attend the meeting. Once again, no minutes are taken.

Doc 07-page-001

(As with Nicola Sturgeon’s meeting in September 2016, parts of the briefing documents for this meeting were initially redacted. Before and after version are shown below.)

~~~

28 February 2017 – Peter Duncan (Message Matters) contacts Colin McAllister (Special Adviser in the Scottish Government). Duncan asks McAllister to call him and also asks for assistance on three points relating to Teach First’s “excellent progress in drawing together a tangible offer to make available to the Scottish Government.” McAllister is asked for feedback on a proposed timeline and to help ‘facilitate’ an intervention whereby the Scottish Government would indicate to universities that engagement with Teach First would be “welcome”. He is also made aware of the possibility of a “helpful media intervention from the Teach for All network”. The third of these was originally redacted by the government, and both version of the document are shown below, along with the proposed timeline (a document which Teach First seem to have been especially keen to keep secret).

RA doc 04 enc-page-001

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17 March 2017 & 4 April 2017 – James Westhead (Teach First) contacts Stuart Robb (Scottish Government) about the forthcoming government tender. The first email comes the day after a telephone call and is “a short note to capture our conversation.” It asserts that Robb “agreed that it would be useful to have a further more detailed conversation so that as commissioners you could understand fully what we could offer and our limitations”. It also claims that Robb agreed to “speak to Morag Redford to emphasise the Government view that HEI’s should be involved in discussions with Teach First around this potential tender”. Morag Redford is the chair of the Scottish Council of Deans of Education, a body representing the Scottish universities involved in Initial Teacher Education.

The second email follows up on the request regarding Redford, asking whether Robb had managed to speak with and “reassure her”. It also raises the possibility of Teach First and the Scottish Government engaging in a “partnership pilot rather than a tender” (the Scottish Government originally attempted to withhold this detail) and highlights concerns over the proposed development timeline of the government’ proposals. This email also makes reference to a meeting between John Swinney and Brett Wigdortz at the International Summit on the Teaching Profession, although no official notes of this meeting seem to exist.

Once again, redacted and unredacted versions of the documents are shown below.

~~~

9 May 2017 – James Westhead writes to John Swinney, raising concerns about the timeline for the government’s new tender and even suggesting that other organisations may “submit tenders that are unrealistic in both ambition, delivery timescales and resource requirements, as they do not have the track record or experience of delivering such programmes.” Westhead suggests an “alternative route” which would permit Teach First to bypass the public tender process and establish a “partnership between Teach First and the Scottish Government” involving a “two-cohort pilot programme in Scotland starting in 2019.” The government initially redacted the sentence at the end of the first paragraph on page two of this document – the full version is shown below.


Analysis

First of all, well-publicised concerns about the Scottish Government’s approach towards transparency and Freedom of Information are front and centre here. Teach First – an organisation which was explicitly seeking a change in Scottish education policy that would be beneficial to their organisation – held three meetings with government ministers (including the first minister of Scotland) without any minutes being taken. There is no version of events in which the decision not to keep proper records of these meetings looks justifiable. Furthermore, the tenuous nature of much of the redaction, highlighted by eventual provision of complete versions of all of the documents requested, raises serious questions about the government’s application of FOI exemptions in order to keep information secret from the public. It is worth remembering that a full disclosure only happened after a six-month battle during which I was forced to go all the way to the Scottish Information Commissioner. The time, knowledge, contacts and, let’s be honest, sheer bloody-mindedness to follow this process all the way through is an obvious barrier to many citizens being able to fully exercise their ‘right to know’.

What is also absolutely clear from all of this is that Teach First has been engaged in a long-term, persistent and – crucially – extremely well-connected lobbying operation. They have utilised links that go to the very heart of the British establishment, including connections with the Prince of Wales and the engagement of a PR company which includes two former MPs (one a piece for Labour and the Conservatives) and, in Marco Biagi, a former SNP government minister, all in pursuit of policy changes from which they would clearly benefit. This is not the behaviour of a benign education charity interested only in social justice, but rather of a multinational business seeking opportunities for further expansion.

Some of the specific details now in the public domain, such as the brazen attempt to bypass the public tender process, or the request to have the government lobby universities on their behalf, should also raise extremely serious questions about Teach First’s conduct as they have sought to gain a foothold in Scottish education.

Their reasons for withdrawing from the government’s tender process also remain unclear. In response to the recent stories about Prince Charles, a Teach First spokesperson said: “The proposed timeline would not provide us with sufficient time to develop a new programme bespoke for Scotland.” This directly contradicts the comment they previously provided in response to this issue, with Reuben Moore (their Director of Leadership) having earlier insisted that they were “pleased the recently announced tender process will give the time to focus on developing an excellent new route into teaching.”

Either way, this is almost certainly not the end of the story.

Update: 17 December 2017

Teach First’s withdrawal from the tender process and the Scottish Government’s response

Following a further FOI request the Scottish Government has provided me with Teach First’s letter to the Scottish Government informing them that they would not be submitting a bid to operate the “new route into teaching”.

TF withdrawal-page-001

TF withdrawal-page-00-2

There are a few things to note here.

The first is the assertion that Teach First “welcomed the issuing of a tender”, a claim which appears to be at odds with the contents of the letter sent to the Scottish Government in May 2017. At this stage, James Westhead (Executive Director of Teach First) attempted to convince John Swinney to allow the organisation to bypass the tendering process entirely, seeking instead to establish a “bilateral arrangement” with the government.

Doc37 extract

The next issue is the reasons – plural – given by Teach First for not submitting a bid. We now know that they had concerns not just about the timeline involved but also with the funding available.

Regarding the timeline, Teach First have made clear that they “are uncomfortable with commencing recruitment in February to a programme that would not have been fully designed or accredited by then.” This is an entirely reasonable criticism of the government’s plans, which are laid out within the official tender documents (which I have already analysed):

TD-Timeline

In addition to their concerns about the time available for the programme, Teach First have now also highlighted what they regard as problems with the funding, which they regard as being “not sufficiently clear”. They also appear to have been put off by the fact that they “could not receive funding directly”.

Unsurprisingly, however, Teach First does not regard this set back as the end of the matter and clearly retain ambitions of Scottish expansion. Their letter once again seeks Scottish Government “support” in developing a relation with a university partner and also requests a further meeting with John Swinney.

The education secretary’s response does not appear to offer them any encouragement on either point:

TF withdrawal response-page-001


If you would like to read original PDF versions of any of the documents included above please contact me at jmcemedia@gmail.com

Revealed: meetings between the Scottish Government and Teach First | Blog

In recent weeks both The Herald (see here and here) and The Guardian (see here and here) have published stories regarding communications between Teach First – an organisation specialising in ‘fast-track’ teacher training – and the Scottish Government.

Below is a list of meetings dating back to 2012 along with links to the original documents from which this information has been drawn (released following a Freedom of Information request).

Those familiar with the Scottish Government’s record when it comes to transparency will be unsurprised to discover that no minutes were taken during three separate ministerial meetings with Teach First, despite official briefings being prepared and civil servants also being in attendance.


16/5/2012 – Scottish Government officials met with Teach First representatives

This meeting took place the morning after Teach First had hosted a reception at the Scottish Parliament. Then education secretary Mike Russell attended the reception. No names of participants are confirmed but an email suggests Brett Wigdortz (Teach First) may have been present.

Mike Russell asked “to be kept closely informed of developments…”.

Brief record of meeting (redacted by Scottish Government)


30/1/2014 – Mike Russell met with Brett Wigdortz & James Westhead (Teach First)
Also present: Fiona Robertson, Ian Mitchell, Rachel Sunderland (Scottish Government)

A full briefing for this meeting was prepared but no minutes were taken and no further notes of what was discussed are available.

Official briefing docs (redacted by Scottish Government)

No minutes


22/4/2016 – Stuart Robb & John Gunstone (Scottish Government officials) met with James Westhead & Reuben Moore (Teach First)

This meeting seems to originate in a conversation between James Westhead (Teach First) and Mark Leishman (Private Secretary to the Prince of Wales). A Scottish Government official makes a specific request for notes of the meeting but receives no reply. The email chain ceases at this point.

Email chain

No minutes or other records


26/8/2016 – Stuart Robb & David Roy (Scottish Government) had a telephone conference with Jonathan Dando (Teach First)

This discussion seems to focus on the Scottish Government’s plans for “new forms” of teacher education in Scotland, and serves as preparation for the meeting with Nicola Sturgeon.

It includes the following:

“We agree to ensure [Teach First] had the opportunity to tender if we go down that route.”

Notes of conversation


21/9/2016 – Nicola Sturgeon met with Paul Drechsler (Teach First)

Also present: Clare Hicks (Scottish Government)

A full briefing for this meeting was prepared but no minutes were taken and no further notes of what was discussed are available.

The official briefing document classes this as a “private meeting”.

Official briefing docs (redacted by Scottish Government)

No minutes.


10/1/2017 – John Swinney met with James Westhead (Teach First) & Peter Duncan(Message Matters)

Also present: Stuart Robb (Scottish Government)

A full briefing for this meeting was prepared but no minutes were taken and no further notes of what was discussed are available. Prof Lesley Sawers (Equality and Human Rights Commissioner for Scotland) is advising Teach First but was unable to attend this meeting.

Official briefing docs (redacted by Scottish Government)

No minutes


30 or 31/3/17 – John Swinney met with Brett Wigdortz (Teach First)

This meeting took place during the International Summit on the Teaching Profession 2017 in Edinburgh. Reference to the meeting appears only in a heavily redacted email exchange

Email exchange (redacted by Scottish Government)


NB The Scottish Government has also been lobbied by Prince Charles on behalf of Teach First, but refuses to release details of this communication. You can read about this story on The Guardian website.

As highlighted in this article for The Guardian, documents released by the Scottish Government also suggest that former First Minister Alex Salmond discussed Teach First with the Prince of Wales during a meeting on the 12th of June 2013

ScotGov refuse to release Prince Charles lobbying letters | The Guardian

First published on August 14, 2017 by The Guardian: https://www.theguardian.com/uk-news/2017/aug/14/scottish-ministers-refuse-to-make-public-prince-charless-lobbying-letters-teacher-training-rules-scotland (shared byline with Severin Carrell)

Prince’s office supported proposals from charity that could financially benefit from changes to Scotland’s teacher training rules

The Scottish government is refusing to release correspondence showing the Prince of Wales lobbied ministers to loosen up strict rules on teacher training for a charity that stands to earn money from the changes.

Ministers have rejected three requests to publish letters and documents from Prince Charles’s office supporting proposals from Teach First, a charity he helped set up 15 years ago, to introduce fast-track teacher training in Scotland.

It comes at a time when the Scottish government is on the brink of announcing a £1m scheme to accelerate training in Scotland amid a shortage of suitable graduates, allowing new providers to enter the market.

Teach First said it has expressed its interest in bidding for the new contract to supply teachers in Scotland, and would earn a fee for every person it recruits if it wins. In England, where the charity has recruited more than 10,000 teachers for state schools and academies, it earns £2,600 for each trainee.

Prince Charles has served as Teach First’s patron since it was founded in 2002 with the aim of recruiting teachers for inner city schools that struggle to find teachers. It fast-tracks university graduates through a six-week training course, who then continue training in the classroom.

A handful of the prince’s “black spider” handwritten letters, written to UK ministers in 2004 and 2005, were released after the Guardian won a 10-year legal battle to have them disclosed under the Freedom of Information Act. But the law in England and Wales on the disclosure of royal correspondence has since been tightened substantially, meaning they no longer have to be made public.

Scottish ministers have said the Scotland’s FoI rules on royal correspondence remain more open than the rest of the UK, and were not tightened after the black spider memo case. But civil rights activists say that claim is undermined by the Scottish government’s decision in this case.

Maurice Frankel, the director of the Campaign for Freedom of Information, said there was a clear conflict of interest if the prince was lobbying on behalf of a charity he patronised and which would gain financially from that lobbying.

“There is a powerful case for access to his advocacy correspondence, full stop,” Frankel said. “We’re talking about a specific policy which it turns out will financially benefit the organisation about which he is expressing those views. That says ‘conflict of interest’ in very large letters.”

An investigation by the Guardian shows the Scottish government was first lobbied by the prince in April 2012. That same day Teach First also sent the then Scottish education secretary, Mike Russell, a briefing advocating significant changes to Scotland’s teacher training system.

Russell attended a Teach First reception at Holyrood four weeks later, according to Scottish government records that are publicly available. He instructed his officials to keep in contact with the charity while they talked to the General Teaching Council Scotland about its proposals. One document notes Russell “would like to be kept closely informed of developments”, although progress was slowed by the independence referendum in 2014.

The issue of changes to teaching in Scotland is a highly charged one. Although the English and Welsh systems have been deregulated, the Scottish profession is highly protective of its state education system and the strict rules governing teacher training.

Scottish secondary school teachers must have a university degree in the specialist subject they teach and a one-year graduate diploma taught at a university. Teach First has proposed instead a five-week summer course before its Scottish trainees are placed in the classroom, similar to its English and Welsh model.

Iain Gray, Scottish Labour’s education spokesman, said: “The pattern of communication with Teach First directly and with the Prince of Wales on their behalf can only raise questions of policy being made as a result of pressure, and these concerns must be dispelled or otherwise by disclosure of the correspondence.”

The official records show Teach First kept lobbying the Scottish government. Civil servants have redacted further correspondence and briefing papers from 2012, 2013 and 2014 on the grounds they relate to the Prince of Wales. One of those is a letter from Russell to Teach First; another is a Scottish government briefing pack on the charity.

Even though Scottish ministers insist they weigh up the public interest very carefully when it comes to correspondence from the royal household, in this case they have applied a unique exemption under section 41(a) in the Freedom of Information (Scotland) Act 2002, on all documents mentioning the Prince of Wales.

Two requests were made to the Scottish government to release the correspondence under the act, followed up by a media request from the Guardian to make them public. But the Scottish government said it had applied the royal exemption because the material related to “communications with HRH the Prince Charles, the Duke of Rothesay”.

Officials at Clarence House in London also refused to release the material voluntarily, and refused to comment. The prince’s officials are sticking to their policy not to release correspondence from him which they say is private, and refuse to deny that the letters came from his private office. Teach First referred inquiries about his role to Clarence House.

A Scottish government spokesman said: “The primary aim of the development of new routes into teaching is to broaden the range of people entering the teaching profession, not fast-tracking the qualification of new teachers.

“Any new route into teaching must be accredited by the General Teaching Council for Scotland and will require a partnership with a university.”

Student teachers in class after five weeks of training | The Herald

First published on August 11, 2017 by The Herald: http://www.heraldscotland.com/news/15466952.Student_teachers_in_class_after_five_weeks_of_training/ (shared byline with Andrew Denholm)

TRAINEE teachers would be allowed to start work in Scotland after a five week summer school under controversial proposals for a new fast-track course.

Documents obtained under freedom of information legislation show the educational charity Teach First has suggested the setting up of a Scottish Summer Institute as part of a briefing to John Swinney, the Deputy First Minister and Education Secretary.

Teach First is talking to the Scottish Government after ministers decided to put out to tender a new fast-track teacher training course targeted at plugging vacancies in rural schools and key subjects such as science, technology and maths.

However, the proposal for an intensive summer school will prove controversial because it undermines the traditional model of university teacher education where postgraduate students undertake a year of study – including work placements – before joining a school as a probationer in their second year.

Graduates entering the classroom after just a few weeks of training will also reignite concerns about unqualified teachers working in schools.

The documents state: “Participants would undertake an intensive Scottish summer school prior to commencing work in a school with a phased introduction to responsibility overseen by an experienced Scottish teacher.”

A second paper says: “The Scottish Summer Institute would be focused on providing Teach for Scotland participants with a strong grounding in the key areas of classroom management, assessment and planning.”

The documents also show Teach First is proposing a two-year postgraduate course with trainees being paid in the first year of their course once they complete the summer school and move to “on-the-job” training.

Trainees would then experience a “phased introduction to responsibility” over the course of their first year, during which they would “work towards General Teaching Council Scotland accreditation.”

Such a proposal is likely to be highly controversial as it would mean individuals working in schools, and even teaching classes, before meeting GTCS teacher standards.

Teach for Scotland trainees would also be “paid in accordance with their level of responsibility, which is increased to full pay by the end of the programme.”

In England, Teach First trainees receive “at least the basic salary for an unqualified teacher” during their first year, but no arrangements are currently in place to pay unqualified teachers in Scotland.

It also means paid Teach First participants would be working alongside university-educated students undertaking intensive work placement free of charge.

In addition, a number of “key requirements” are provided which schools must meet in order to receive a Teach for Scotland participant.

These include a commitment to provide individuals with a “significant leadership opportunity in their first year” as well as the chance to “act as the lead class teacher by the end of their first year.”

Scotland is currently facing acute teacher shortages in certain parts of the country and in a number of subject areas including, most notably in key STEM subjects. The Scottish Government is committed to developing new routes into the teaching profession, with the goal of attracting “high-quality graduates in priority areas and subjects.” £1m of funding from the Attainment Scotland Fund has been earmarked for this purpose.

A spokeswoman for the Educational Institute of Scotland said: “We do not believe that handing greater responsibility to unqualified graduates will lead to better outcomes for pupils.

“The Teach First proposal would give such trainees just a few weeks training before putting them into the classroom at the start of the academic year to teach pupils, presumably together with a qualified teacher, and then the trainees would rise to act as the lead class teacher before the end of the first year.

“The EIS believes the teaching responsibilities placed on these trainees would be premature and excessive, and would be to the detriment of the pupils.”

The spokesman said proposal that trainees would be employed by schools meant a school could have two groups of trainee teachers on postgraduate programmes working with pupils – one group being paid whilst the other is not.

She added: “This does not seem like an equitable system and it may deter graduates from entering the current well-regarded route into teaching. The notion of differentiated pay scales is also unlikely to find favour as it would undermine current negotiated pay scales.”

Rueben Moore, director of leadership for Teach First, said the proposals for Teach for Scotland were not yet finalised.

He said: “We’re clear that any new teaching route in Scotland would need to be a bespoke model that was designed and delivered for the Scotland context, with Scottish university and education providers.

“It would need to complement, not compete, with the pathways that already exist, and be befitting of the academic rigour and world class standards of teacher education in Scotland.

“The proposal discussed with the Deputy First Minister was some initial thoughts on an approach, but doesn’t reflect a final model.”

Mr Moore said Teach First would welcome input from the wider Scottish education sector on their ideas.

The General Teaching Council for Scotland, which would have to sign off any new proposal, said they had made it clear to Teach First that standards would have to be maintained.

A spokesman said: “We have had discussions with Teach First on a few occasions and, as Mr Swinney has stated, the principle of meeting our standards before becoming a teacher will continue in Scotland.

“Being properly qualified to teach in Scotland, and meeting the GTCS standards will remain the benchmark for aspiring teachers.”

A Scottish Government spokeswoman said: “Ministers have made clear that we will always maintain the high standard we expect new recruits to attain before they become fully-fledged teachers.

“This means that any new route into teaching must be accredited by the GTCS and will require a partnership with a university to maintain academic rigour and ensure programmes are of the highest quality.

“We have committed £1 million from the Scottish Attainment Fund to identify and develop new ways for people to come into teaching, and will shortly be putting a new initiative out to tender designed to attract high quality graduates in priority areas and subjects.”

A year long fight for the truth comes to an end | Daily Record

First published on Sept 17, 2016 by the Daily Record: http://www.dailyrecord.co.uk/news/scottish-news/year-long-fight-truth-government-8854300


IT’S finally over.

After a scarcely believable and unnecessary year-long battle the Scottish Government have finally been forced to release the written advice they received regarding standardised testing.

The public now has access to the unvarnished and mostly unredacted truth, as should always have been the case.

We now know this material, which informed a controversial shift in education policy, consisted of four emails from two individuals and that a number of the written recommendations were rejected.

What’s more, these submissions were, according to the Scottish Information Commissioner, “unsolicited”, suggesting that the Government did not even bother to seek written advice before announcing their plans last September.

The Government have tried to defend themselves by pointing to “many in-depth discussions with parents, teaching unions,academics and education professionals and those views were used to shape the draft National Improvement Framework, including the approach to standardised assessments”.

This seems perfectly reasonable. After all, the Government did hold 11 meetings in the four months before the announcement of their standardised testing plans.

There’s just one problem – from all these hours of talks, over many weeks and months, not one single set of minutes was taken. Not one.

In fact the Government’s record-keeping is apparently so poor that even agendas for nine of the meetings cannot be provided.

So we, the Scottish public, have no way of knowing what was said during these discussions.

It may well be that, recognising how controversial plans for standardised testing were always going to be, the Government made a point of raising the issue at every opportunity.

Then again, it’s also perfectly possible that conversations specifically focused on standardised testing were largely avoided by politicians and Government officials fearful of an overwhelmingly negative reaction.

It may well be that the vast majority of those present whenever standardised testing was raised offered enthusiastic backing for the Government’s proposals.

Or perhaps it’s the case that at meeting after meeting the Government were repeatedly warned that their plans would lead inexorably to serious consequences such as a narrowed educational experience for young people, the publication of damaging school league tables and the entrenchment, rather than reduction, of the so-called attainment gap.

We just don’t know.

In the interests of transparency and democratic accountability several questions must now be answered.

Why did the Government choose not to seek written advice from experts on the matter of standardised testing?

Why have the Government spent a year fighting, in vain, to keep the limited advice they received on the issue a secret from the public?

Why did the Government decide not to take minutes at meetings which former education secretary Angela Constance has admitted directly informed her thinking on the development of the standardised testing policy?

And, most of all, why did the Scottish Government have to be dragged, kicking and screaming, towards an honest, open and transparent position?

At this point it’s worth thinking back to November 15, 2012, when Nicola Sturgeon, then deputy first minister, led a debate about possible amendments to Scottish freedom of information laws.

She told MSPs: “I believe that transparency is not an optional add-on but an integral part of policy-making.”

This noble sentiment was repeated in November 2014 when Sturgeon laid out her first programme for government, with Holyrood assured of her intention to lead an “open and accessible government”.

She certainly talks a good game, but it’s impossible to square the First Minister’s asserted support for openness and transparency with the barriers faced by many of those trying to hold her government and other public bodies to account.

Earlier this month, for example, it emerged the Government had “breached freedom of information law by delaying the release of information” to journalist Rob Edwards.

The report included a damning extract from the Scottish Information Commissioner’s judgment on the case which described ministers as “unreasonable”.

Concerns have also been raised about attempts to conceal the nature and contents of a conversation between the First Minister and Andrew Wilson, a former SNP MSP who has been appointed as chairman of the new Growth Commission.

Given what we now know, it’s hard to see how the Government can pursue standardised testing with any credibility – but it’s clear a bigger issue needs addressed.

If Sturgeon is genuinely committed to open, transparent and accountable policy-making, then a fundamental shift in the official attitude towards the recording and release of information is needed.

The SNP promised us openness and transparency, and the people of Scotland deserve nothing less.

FOI Watchdog Orders Government to Release Testing Advice | Blog

First published 7 Jul, 2016 on Medium – https://medium.com/@MrMcEnaney/foi-watchdog-orders-scotgov-to-release-standardised-testing-advice-b9f965a3a2b3


After a ten-month battle, the Scottish Information Commissioner has rejected the bulk of the government’s arguments for keeping vital information secret.

Background
On 1 September, 2015 First Minister Nicola Sturgeon announced the publication of the draft National Improvement Framework (NIF). This document laid out the government’s plans for improving Scottish education and included one particularly controversial measure: the imposition of national standardised testing (NST) on children as young as four years old.

I wrote about it at the time for CommonSpace — you can read the article here.

On 3 September, 2015 I submitted the following Freedom of Information (FOI) request to the Scottish Government:

Please provide details of the advice provided to the Scottish government which resulted in the announcement of national standardised tests in the Programme for Government.

Please make the advice itself available along with the name of the individual or organisation responsible for the advice.

The government’s initial response was to effectively refuse my request. I was directed to two OECD reports that had apparently been “taken account” of, furnished with some obviously inappropriate PR waffle, and advised that several exemptions under the Freedom of Information Scotland Act (FOISA) had been applied. You can read the full response here.

Unsurprisingly, I was far from satisfied with this response and, consequently, submitted an appeal. I argued that the exemptions had been incorrectly applied and that the public interest clearly favoured release of the withheld information. This appeal was partially upheld.

At this stage I learned that the government had received an extraordinarily limited amount of advice around NST, with only two experts (Sue Ellis of the University of Strathclyde and Louise Hayward of the University of Glasgow) offering their opinions in just four emails.

The story was covered by CommonSpace in November 2015 and was subsequently raised in the Scottish Parliament.

Although the government did provide copies of the four emails in question, the information contained within them was almost entirely redacted. Once again, exemptions had been applied in order to keep the specific information provided by the two experts a secret.

You can read the government’s full response here.

On 23 November, 2015 I submitted an appeal to the Scottish Information Commissioner (SIC), asking that she overrule the government and order the release of the redacted information.

Decision by the Scottish Information Commissioner

Following submissions from both myself and the government — and an as yet unresolved controversy over the impartiality of the SIC — a decision was finally issued on 4 July, 2016. You can read it here.

The report contains two key findings:

1. Ministers correctly withheld information in documents 2 and 4 under section 30(b)(i) of FOISA

2. The remaining information has been wrongly withheld as [the Commissioner] did not accept it was exempt from disclosure under sections 29(1)(a), 30(b)(i) and 30(c) of FOISA

As a result of these findings, the Scottish Government has been ordered to release the vast majority of previously withheld information by 18 August, 2016.

Details of the Scottish Information Commissioner’s Decision

The Decision Notice breaks down into four main sections, each of which is explored below.

Point 1 — Information falling within the scope of the request
The Scottish Government held a series of meetings both before and after the publication of the draft NIF document in September 2015. In their submissions to the SIC, the government argued that the details of these meetings did not fall within the scope of my request as they were focused on the NIF as a whole, not NST specifically.

The Commissioner rejected this position and made clear that such information would indeed fall within the scope of my request.

This was, however, something of a hollow victory as it is now clear that the government has neglected to take minutes of these meetings. Officials argue that these meetings were “informal in nature” despite them having been arranged specifically to support a Minister in the development of government policy.

A separate FOI investigation has confirmed that, prior to the launch of the draft NIF, a total of eleven meetings took place — none were minuted, and the government is only able to provide an agenda for two of them. You can see the list of meetings here.

This matter deserves individual attention, particularly as it highlights behaviour which may be intended to prevent successful FOI requests by simply failing to record certain information.

Point 2 — Formulation of Scottish Administration Policy
Exemption 29(1)(a) allows for information to be withheld if it relates to the “formulation or development of government policy.”

The Commissioner accepted that the government was entitled to apply this exemption, but also noted that it is a ‘qualified exemption’ and is therefore subject to the “public interest test”.

The government argued that keeping this information a secret was vital in the interests of “protecting high quality policy and decision-making”, a rather ironic contention given the nature of the dispute as a whole.

Curiously, they also claimed that releasing the information in question “would be likely to give a misleading impression of the Minister’s intentions.”

The Commissioner disagreed.

She recognised that the imposition of standardised tests “will have a direct effect on a significant proportion of the Scottish population”, accepted “that there is a strong public interest in the disclosure of information which would show why the development of this policy took the direction it did” and “concluded that the public interest in disclosure of the withheld information outweighs the public interest in maintaining the exemption.

Point 3 — Prejudice to effective conduct of public affairs
Exemption 30(c) allows for information to be withheld if disclosing it would “prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs”.

The Commissioner explicitly points out that this exemption is very broad, highlighting the fact that she would expect “any public authority citing it to show what specific harm would (or would be likely to) be caused” by the release of the information in question. General, precautionary or theoretical concerns are not good enough to justify withholding information under this exemption.

The government defended its position by arguing that releasing the information “would substantially inhibit” future communications with the two Professors involved, and that other “key stakeholders” would be reluctant to provide advice in future.

The Commissioner rejected this argument entirely.

In fact, she specifically criticised the government’s arguments as being merely “hypothetical” and highlighted the “absence of any persuasive evidence or explanation from the Ministers”.

She also highlighted the fact that the advice received by the government was“unsolicited” (more on this later).

The Commissioner therefore found that the government was incorrect to apply exemption 30(c) as a means of withholding information.

Point 4 — Free and frank provision of advice
Exemption 30(b)(i) allows the government to withhold information if releasing it would “inhibit substantially the free and frank provision of advice.”

The government argued that this exemption should be applied because “key stakeholders will be considerably more circumspect in providing free and frank advice to the Scottish Government, if it is widely known that advice provided in these initial stages of policy formulation is likely to be disclosed”.

Importantly, the Commissioner “notes that the Ministers have applied the exemption…to only a few, specified comments in three of the documents, and have asked for the exemption to come into play only if she rejects the application of the exemptions in section 29(1)(a) and 30(c).

So desperate was the government to keep this information secret that they had sought a back-up exemption for use if their first attempt was rejected.

Where the exemption has been applied to Document 1, the Commissioner “does not accept” the government’s argument and requires that this information is disclosed.

In Documents 2 and 4, the Commissioner accepts that the exemption is valid as the specific comments to which it has been applied are “more personal in nature”.

Having confirmed that the exemption has, in these cases, been correctly applied, the Commissioner then applied the public interest test. In this instance, she decided that the exemption should be permitted.

Despite recognising that “disclosure of the information withheld…would increase transparency and allow the public to gain a better understanding of the information and advice provided to Ministers on this subject”, the Commissioner ultimately accepted that disclosure of the “few, specified comments” being withheld under this exclusion would “inhibit expert individuals from commenting frankly and willing on such issues”.

In the end, she decided that the government is “entitled” to apply the exemption in this one area, meaning that a small amount of information will likely remain secret.

Conclusions

Assuming this decision is not challenged by Ministers in the Court of Session, the Scottish Government is now required to disclose information that it wasdesperate to keep hidden from the public. Although the application of one exemption has been partially upheld, this will only allow the government to withhold “a few, specified comments” in two documents — the rest will have to be released.

It is worth noting that the government has now spent 10 months (almost to the day) fighting against the release of information when disclosure was always, quite clearly, in the public interest. It now has until 18 August, 2016 to provide me with the information outlined above: at that point this investigation will be just a fortnight short of one year old.

This of course means that potentially damaging information will not be available to the public until the new standardised tests are about to be trialled, therefore undermining our ability to hold the government to account on this matter.

On that particular point, there are also serious questions to be asked about the revelation that the Scottish Government does not take minutes, or even keep notes, from meetings held as part of the policy development process.

Are policies such as the imposition of standardised testing, which the Commissioner describes as “an issue of key public interest”, really being formulated on the basis of the collective recollections of a dozen conversations?

Or, on the other hand, is the government neglecting to retain this sort of material and, whether intentionally or otherwise, keeping important information out of the reach of FOI legislation?

Attention should also turn to the description of the written advice at the heart of this issue as “unsolicited”. We already knew that the government received only four pieces of written advice from just two individuals during the development of this policy; we now know that they didn’t even bother to ask for that advice in the first place.

It looks very much as if the Scottish Government settled on National Standardised Testing — a feature of the NIF that was never up for discussion from the moment the document was published — without even seeking written advice from academics or education professionals. I doubt I’d be the only person to feel deeply uncomfortable about such a dangerously flawed method of policy development.