Covid Public Inquiry Establishment Division: FOI review

Information requested

Further to my letter of 3 November 2021 acknowledging your request for a review and Robert Spratt’s letter of 29 November 2021 explaining the delay in responding due to volume and complexity of the information covered, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for 

1. Any minutes of meetings of the Covid Public Inquiry Establishment Division. 

2. Any minutes of meetings with ministers and the Covid Public Inquiry Establishment Division. 

3. Any briefings sent to ministers by the Covid Public Inquiry Establishment Division. 

 

Response

I have concluded that a different decision should be substituted. 

I sincerely apologise for the delay in responding to your request for review. This was due to the volume and complexity of the information together with the pressures of other urgent work. 

I have re-considered the application of the exemption at section 29(1)(a) of FOISA, which was applied to all information requested in our original response to your request on the basis that it related to the development of the Scottish Government’s policy on the establishment of a Scottish COVID-19 public inquiry. I have concluded that this exemption was incorrectly applied to the information requested, and I have therefore gone on to consider your request afresh. 

Request Part 1 

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. The Scottish Government does not have the information you have asked for because, although the Covid Inquiry Establishment Division holds a morning call each day via Microsoft Teams, formal minutes are not taken of these calls as they are informal catch ups where team members give brief updates on their work and priorities for the day. 

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

Request Part 2 

In conducting my review I have given further consideration to the single document identified as falling within the scope of this part of your request and previously withheld under section 29(1)(a) and I have determined that most of this information can be provided. 

I have enclosed the minutes of a meeting between the First Minister, the Deputy First Minister and Cabinet Secretary for Covid Recovery, the Cabinet Secretary for Health and Social Care, and officials from the Covid Inquiry Establishment Division, which took place on 5 August 2021, in Annex B to this letter. 

While our aim is to provide information whenever possible, a small amount of personal information has been redacted from these minutes because an exemption applies under section 38(1)(b) of FOISA. This exemption applies because it is personal data of a third party, the names/contact details of individuals, and disclosing it 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. 

Request Part 3 

As noted above, in conducting my review I have given further consideration to the information previously withheld under section 29(1)(a) and have determined that this exemption no longer applies. 

In considering the original response and the information previously withheld I have undertaken an extensive review of the documents held and have concluded that some of this information can be disclosed. That information is enclosed separately within Annex B to this letter. I have also determined that some information remains exempt from disclosure because exemptions under sections 28(1) (UK relations), 30(b)(i) (free and frank advice), 30(c) (effective conduct of public affairs), 36(1) (legal advice) and section 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained below in Annex A to this letter. 

In addition, I have identified that some information was considered within the handling of the original request as being in scope which was not within the scope of your request. Specifically this relates to an attachment to an email sent 21 July 2021 which was not briefing sent from Covid Inquiry Establishment Division (but from another area of Scottish Government) and which is marked in that email as ‘Statutory Public Inquiry - Covid - submission to First Minister’. 

Annex A 

An exemption applies, not subject to the public interest test 

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, ie. names and contact details of individuals, and disclosing it 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 includes redactions which have been made in order to protect the personal information of bereaved families. 

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. 

Exemptions apply, subject to the public interest test Section 28(1) – relations within the UK 

An exemption under section 28(1) of FOISA (relations within the UK) applies to a small amount of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government, Welsh Government and Northern Ireland Executive, by revealing details of internal discussions of other administrations’ policy positions in relation to a COVID-19 public inquiry and disclosing detail of both these and the Scottish Government’s own position in relation to engagement with other administrations. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. Disclosure of this information will mean that the UK Government, Welsh Government and Northern Ireland Executive are likely to be more reluctant to communicate as frequently and openly with the Scottish Government in future. 

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 maintaining close working relationships between the Scottish Government and the UK Government, Welsh Government and Northern Ireland Executive, and in protecting the free exchange of information between the administrations to ensure that we keep each other fully and regularly informed about matters of mutual interest, such as the intended scope and operation of the UK COVID-19 inquiry, the Scottish COVID-19 inquiry, and respective policy positions. 

There is no public interest in disclosing information when that will damage relationships and disrupt future communications as that may impact on the effectiveness of future policy development and implementation work. There is also no public interest in disclosing information that may prejudice the independent operation of the Scottish and UK public inquiries, by disclosing details of discussions regarding their establishment. 

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 some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on matters relating to the establishment of a Scottish COVID-19 public inquiry will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to sensitive issues which are now within the independent remit of the inquiry Chair, rather than that of Scottish Ministers, now that the inquiry has been set up. 

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 matters relating to a Scottish COVID-19 public inquiry, until the Government as a whole can adopt a policy position that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy-making process, which would not be in the public interest. 

There is also greater public interest in ensuring that the Scottish Covid-19 Inquiry is able to operate as intended entirely independent of Government and at the direction of its Chair, and it is likely that public disclosure of internal policy advice on matters relating to the establishment of the inquiry would have the unintended consequence of now restricting or inhibiting the operational independence of the Inquiry and its Chair. For this reason, the public interest in applying the exemption and withholding the information outweighs the public interest in disclosing it. 

Section 30 (c) – substantial prejudice to the effective conduct of public affairs 

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers and officials to be able to communicate and/or meet, often in confidence, with external stakeholders on a range of issues, including in this case on matters relating to the processes of establishing an independent COVID-19 public inquiry. 

Disclosing the content of these communications and information about these meetings, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. Stakeholders will be reluctant to participate in meetings and provide their views fully and frankly to the Scottish Government if they believe that their views are likely to be made public, particularly while such discussions are still ongoing and decisions have not been taken, and when these discussions relate to sensitive issues such as the establishment of a public inquiry. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions. 

Disclosing this information would also substantially prejudice the operation of the Scottish COVID-19 Inquiry by revealing information on matters relating to the establishment and operation of the inquiry, which are now within the operational independence of the Inquiry and its Chair. 

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 Ministers and officials a private space within which to communicate and/or meet with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on matters and processes relating to the establishment of a COVID-19 public inquiry, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy and decision-making process, which would not be in the public interest. 

There is also a greater public interest, following the establishment of an independent Scottish COVID-19 public inquiry, in protecting its independent operation and the process of carrying out its work by not revealing details of early discussions of matters which are now – following the setting up of the Inquiry - within the remit of the Inquiry. 

Section 36 (1) - confidentiality in legal proceedings 

An exemption under section 36 (1) of FOISA (confidentiality in legal proceedings) applies to a small amount of the information requested because it is legal advice and disclosure would breach legal professional privilege. 

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. 

 

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI response to review of case 202100244389 (new case 202100251822) Annex B

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