Publication - FOI/EIR release

Questions concerning the Sturrock report: FOI Review

Information request and response under the Freedom of Information (Scotland) Act 2002

Published:
9 Jun 2020
Questions concerning the Sturrock report: FOI Review
FOI reference: FOI/202000024268 Review
Date received: 2 Mar 2020
Date responded: 1 Jun 2020
Information requested

With ref. to the FOI response referenced above I do not believe that the response provided properly addressed the questions asked. I have noted below some specific points for your consideration.
Q1 It is noted that the answer to this question was ‘Yes’. The additional comment does not appear to either enhance or qualify this positive statement.

Q2 The response does not answer question asked in terms of whether or not NHSH has shared an action list or similar document which addresses ALL Mr Sturrock’s recommendations. Also any reference to a 'Culture Fit for Future' is irrelevant in this respect as it has already been acknowledged that this does not address ALL points raised by Mr Sturrock.

Q3 The response given does not identify how the Scottish Government has effectively monitored the NHSH response to Mr Sturrock’s report other than state that various meetings were held. Do any records exist  which demonstrate to the Scottish Government that NHSH have considered ALL of Mr Sturrock’s findings ? I accept the various comments noted in the response given ,and also in Mr Sturrocks’s report ,regarding the nature of any qualifications that Mr Sturrock made to his findings .However the question asked relates to how the Scottish Government assure themselves that ALL findings were considered . I do not believe that this point has been answered. 
No specific answer to the question relating to 'basis of confidence' has been provided. With respect to the statement made that 'The Health Secretary has visited NHS Highland a number of times to examine implementation of short-term actions and to hear how longer-term action planning is progressing.' please provide a copy of any records made in association with these discussions that can be released and confirm whether or not such visits and discussions addressed ALL the findings noted by Mr Sturrock Alternatively if this was addressed via the other review activities you reference please advise and confirm accordingly. If no specific confirmations can be made please clearly state how the Scottish Government can provide assurance that ALL of Mr Sturrock's points have been duly considered in accordance with the Scottish Governments 'Yes' response to Q1. 
Please treat the above paragraph as a new FOI if it cannot be addressed fully as part of your additional response to the FOI noted above.

Q4 The response does not address whether or not Mr Sturrock was consulted by NHSH.

Q5 This question quoted a number of specific examples from the points raised by Mr Sturrock .The fact that it is the responsibility of NHSH to address these is not disputed. The answers provided do not however give any indication as to whether or not the Scottish Government are indeed monitoring or have awareness of the NHSH position in relation to these points.
Quoting from your response 'As mentioned above, the Cabinet Secretary and Senior Scottish Government Officials have met with the Board several times to check on the progress of the Board’s action plan being developed to implement the proposals made in the Sturrock report'. Given the statement in the response to Q1 that ALL of Mr Sturrock's points 'were worthy of review to establish whether or not further action was needed', how has this been reviewed and monitored by the Scottish Government within the stated meetings or action plan. Do records demonstrating this exist?

Response

Further to my letter of 27 April 2020 I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for information in relation to the Sturrock Report, case number 202000014401.
In conducting my review, I have considered the case afresh, noting that you felt that the initial response did not properly address the questions you had asked. You raised a number of specific points for consideration in the review. I have also completed further searches of our records to satisfy myself that all information held by the Scottish Government which falls within the scope of your request has been identified.
I have concluded that the original decision should be confirmed with modifications.
I have determined that some further information identified as part of my review can now be disclosed. I therefore enclose a copy of the information you have requested with the following exceptions. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. The links below provide this information.
https://news.gov.scot/news/strengthening-nhs-workplace-culture
https://www.gov.scot/publications/scottish-government-response-report-bullying-harassment-nhs-highland/
https://www.nhshighland.scot.nhs.uk/News/Pages/NHSHighlandboardmeetstodealwiththeSturrockReview.aspx
http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12083&mode=html#iob_109352

While our aim is to provide information whenever possible, in this instance we are unable to provide a small amount of the information you have requested because exemptions under sections(s) s.30(b)(i) (free and frank advice), s.36(1) (legal advice) and s.38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption(s) applies are explained in Annex A to this letter.

You may find it helpful to note that some information has also been redacted from the information provided because it does not fall within the scope of your request nor does it relate to considerations of the Sturrock Report. For ease of reference this information is marked as [redacted – out of scope]. 
In your request for review, you raised a number of points which I have taken into consideration in coming to the decision set out above. For ease of reference, I have also set out a response to each point in turn below, which I hope you will find helpful.
Briefing information has been provided in relation to visits by the Cabinet Secretary for Health and Sport to NHSH. The January meeting did not go ahead in full as planned and was, in part, rescheduled for February 2020.

Review Question 1: It is noted that the answer to this question was ‘Yes’. The additional comment does not appear to either enhance or qualify this positive statement.

The review concluded that the original question had been answered.

Review Question 2: The response does not answer the question asked in terms of whether or not NHSH has shared an action list or similar document which addresses ALL Mr Sturrock’s recommendations. Also any reference to a 'Culture Fit for Future' is irrelevant in this respect as it has already been
acknowledged that this does not address ALL points raised by Mr Sturrock.

The review upheld the response with modifications. Copies of documentation shared by NHSH are attached.

Review Question 3: The response given does not identify how the Scottish Government has effectively monitored the NHSH response to Mr Sturrock’s report other than state that various meetings were held. Do any records exist which demonstrate to the Scottish Government that NHSH have considered ALL of Mr Sturrock’s findings? I accept the various comments noted in the response given, and also in Mr Sturrock’s report, regarding the nature of any qualifications that Mr Sturrock made to his findings .However the question asked relates to how the Scottish Government assure themselves that ALL findings were considered. I do not believe that this point has been answered.
No specific answer to the question relating to 'basis of confidence' has been provided.
With respect to the statement made that 'The Health Secretary has visited NHS Highland a number of times to examine implementation of short-term actions and to hear how longer-term action planning is progressing.' please provide a copy of any records made in association with these discussions that can be released and confirm whether or not such visits and discussions addressed ALL the findings noted by Mr Sturrock Alternatively if this was addressed via the other review activities you reference please advise and confirm accordingly. If no specific confirmations can be made please clearly state how the Scottish Government can provide assurance that ALL of Mr Sturrock's points have been duly considered in accordance with the Scottish Governments 'Yes' response to Q1.
Please treat the above paragraph as a new FOI if it cannot be addressed fully as part of your additional response to the FOI noted above.

The review upheld the response as it set out the approach being taken by Scottish Government. Whilst we acknowledge that no single document specifically states that all findings were considered, the information provided sets out that the Cabinet Secretary for Health and Sport has taken a robust approach to assuring herself that all of the recommendations have been considered.

Review Q4: The response does not address whether or not Mr Sturrock was consulted by NHSH.
The review upheld the response with modifications. The response identified the Scottish Government’s response but should have referred the requester to NHSH as the Scottish Government does not hold this  information. It is a matter for NHSH to respond on whether or not they consulted with Mr Sturrock. The contact details for NHSH FOI team is: High-UHB.FOIRequestsHighland@nhs.net This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested in relation to this part of your request.

Review Q5: This question quoted a number of specific examples from the points raised by Mr Sturrock.The fact that it is the responsibility of NHSH to address these is not disputed. The answers provided do not however give any indication as to whether or not the Scottish Government are indeed monitoring or have awareness of the NHSH position in relation to these points. Quoting from your response 'As mentioned above, the Cabinet Secretary and Senior Scottish Government Officials have met with the Board several times to check on the progress of the Board’s action plan being developed to implement the proposals made in the Sturrock report'. Given the statement in the response to Q1 that ALL of Mr Sturrock's points 'were worthy of review to establish whether or not further action was needed', how has this been reviewed and monitored by the Scottish Government within the stated meetings or action plan. Do records demonstrating this exist? 

The review upheld the response. In response to the additional questions the review found copies of documentation relating to the approach taken which are attached.

Annex A
REASONS FOR NOT PROVIDING INFORMATION

An exemption applies
Section 38(1)(b) – applicant has asked for personal data of a third party
An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party. The names, contact details and identifiable information of Scottish Government staff and individuals from other organisations who are below Senior Civil Service or equivalent have been redacted. In addition, direct contact details for more senior staff have also been redacted as disclosing this information would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.
This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption. 

An exemption applies, subject to the public interest test
Section 36(1) – legal advice
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to a single paragraph because it is legal advice and disclosure would breach legal professional privilege. For ease of reference this is indicated as [redacted – section 36(1)]. 
This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

Section 30(b)(i) – free and frank provision of advice
An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to a small amount of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. The exemption recognises the need for Ministers to have a private space within which to seek advice from officials before reaching the settled public position. Disclosing the content of free and frank briefing material on the Sturrock Report  and considerations taken forward with NHSH will substantially inhibit such briefing in the future, particularly because these  discussions relate to a sensitive or controversial issue such as the topics covered by the Sturrock Report.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s position on the Sturrock Report recommendations. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice in the future, which would not be in the public interest.

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Contact

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Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

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