7 April 2022
ATISN 16003 Internal review of Freedom of Information request - Welsh Government Consultation on RSE Guidance and Code
Thank you for your request which I received on 17 March 2022. You asked for:
- an internal review of Welsh Government's handling of your FOI request 'Welsh Government Consultation on RSE Guidance and Code' and requested that the review is conducted to establish whether or not the S35 exemption was correctly applied in this case.
The internal review examined the use of s35 (1)(a) and how it was applied. The documents exempted were reviewed to examine i) whether the information they contained related to policy in development ii) the public interest test had been considered. Information is exempt under s35(1)(a) for the FoI Act if that information relates to the formulation or development of government policy. Whilst this is normally seen as the initial formulation of a policy it can also relate to ongoing revision and review of existing policy where such work may result in amending or revising an existing policy. The exemption was considered to be properly applied. The documents discuss matters of policy development and the factors considered as part of the public interest test are reasonable.
As part of the review I asked that consideration be given to the application of Gunning Principle Four – conscientious consideration given to the consultation responses. There is evidence that information from the consultation has been considered and incorporated into the revised Code; evidence is found in the documentation which has been considered exempt under s35.
The contact details for the Information Commissioner’s Office are:
Telephone: 0303 123 1113
If you have any queries about this request do not hesitate to contact me. Please remember to quote the reference number above in any future correspondence.
Cyfarwyddwr y Gymraeg ac Addysg / Director of Education and the Welsh Language
18 February 2022
ATISN 16003 Public consultation on the Relationships and Sexuality Education (RSE) Guidance and Code
Thank you for your request which I received on 24 January. You asked for:
- Background briefing papers, reports, analysis, summaries, advice or submissions made by Welsh Government to the Minister for Education and Welsh Language regarding the Relationships and Sexuality Education (RSE) consultation, its outcome (including any statistical analysis of responses) and advice on next steps/the way forward during the period 7 May 2021 until 24 January 2022.
- Background briefing papers, reports, analysis, summaries, advice or submissions prepared by Welsh Government for the Minister for Education and Welsh Language regarding any other aspect of the RSE Curriculum Guidance and Code during the period 7 May 2021 until 24 January 2022.
A copy of the information to be release is enclosed.
I have decided that some of the information is exempt from disclosure under section 35(1) (a), formulation of government policy of the Freedom of Information Act and is therefore withheld. The reasons for applying this exemptions are set out in full at Annex A to this letter.
If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response. Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:
Information Rights Unit,
or Email: Freedom.email@example.com
Please remember to quote the ATISN reference number above.
You also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at:
Information Commissioner’s Office,
However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Application of exemptions/exceptions
The Freedom of Information Act (FoIA) provide a right for anyone to ask a public authority to make requested information available to the wider public. As the release of requested information is to the world, not just the requester, public authorities need to consider the effects of making the information freely available to everybody. Any personal interest the requester has for accessing the information cannot override those wider considerations.
I have decided to withhold the following information:
Information being withheld
Section number and exemption name
|During the course of the policy formulation and development for Relationships and Sexuality education (RSE), some briefing and advice sent to the Minister for Education and Welsh Language was regarding policy views and options. These papers are being withheld.||s35(1)(a) “formulation of government policy” exemption.|
This Annex sets out the reasons for the engagement of section 35 of the Freedom of Information Act and our subsequent consideration of the Public Interest Test.
Engagement of section 35(1) (a) ‘formulation of government policy’ of the FoIA
The information in question relates to advice and options to be considered by the Minister in order to develop the Welsh Government’s policy in relation to the teaching of relationship and sexual education in schools in Wales.
As the information is clearly related to the formulation of our policy on this matter, I would suggest, the exemption is clearly engaged.
Public Interest Test
In order to satisfy the public interest test in relation to the exemption(s), it is necessary to conclude that the public interest arguments in favour of withholding the information are sufficient to outweigh the public interest arguments in favour of release.
Public interest arguments in favour of disclosure
There is a public interest in the public understanding of how the Welsh Government is intending to address issues of equality and inclusivity in education and therefore also discrimination and exploitation and how this links to wider policy areas that aims to develop a society that is accepting, tolerant and inclusive. This policy area is extremely sensitive - the subject of what is taught in schools under Relationship and Sexuality Education is emotive, engendering strong feelings on certain elements from differing perspectives. Disclosure could illustrate the range of options that were considered in the formulation of the policy.
Public interest arguments in favour of withholding
To protect the integrity of the co-development process and all organisations and individuals involved, we are withholding some of the information requested. Co-development meant that policy discussion directly involved a range of organisations and individuals with wide ranging views and, in addition, strongly felt and conflicting views, values and opinions. Policy development in such a sensitive area with strong feeling from a range of conflicting stakeholders may be easily taken out of context.
It is an important part of this process that stakeholders can express their views in confidence. Making this information publically available would prejudice future policy development.
Balance of public interest test
The Welsh Government believes that, on balance, the wider public interest lies in implementing the policy. The policy area has been widely considered within a range of consultations relating to the Curriculum for Wales from 2019 onwards. Alongside these there has been extensive stakeholder engagement and input from different specialists into the process of policy development leading to scrutiny by all members of the Senedd during the affirmative procedure in December 2021. As such, we believe the balance lies in favour of maintaining the exemption.