Publication - FOI/EIR release

First Minister's advice and statement regarding handling of harassment: FOI release

Published: 11 December 2023
Directorate: Propriety and Ethics Directorate
Topic: Public sector
FOI reference: 202100170091
Date received: 4 March 2021
Date responded: 24 March 2023

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

Information requested

The Scottish Government’s review of Alex Salmond’s submission to the Scottish Government Handling of Harassment Complaints Committee where he identified 46 documents that were inappropriately withheld during the civil and criminal cases that had subsequently been passed to the Committee by the Scottish Government. The First Minister references the document at the timestamped link https://youtu.be/xD_vBWLc67c?t=22014 and says that Scottish Government officials said 13 documents were released under the appropriate warrants and the remaining documents didn’t meet the specific terms of the warrants. The request is for the review from the Scottish Government whereby she obtained that information.
Any Scottish Government documents that were provided to the First Minister for use during her oral evidence session to the Scottish Government Handling of Harassment Complaints Committee. It does not matter whether or not she actually used the documents but whether she was provided them by the Scottish Government for that purpose.

Response

In response to the first part of your request, while our aim is to provide information whenever possible, in this instance we are unable to provide the information you requested because an exemption under section 26(c) of FOISA applies to the information you have requested.

An exemption under section 26(c) of FOISA (prohibitions on disclosure) applies to some parts of the information requested because disclosure of this further information is prohibited by or under an enactment, is incompatible with an EU obligation or would constitute, or be punishable as, contempt of court. 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.

In response to the second part of your request, I enclose a copy of some of the information that you have requested.

A number of the documents contained within the First Minister’s briefing pack were copies of documents which have been published within the public domain, which are noted below.

Scottish Ministerial Code

Additional written submission from Liz Lloyd (190KB pdf) (parliament.scot)

Written submission from Kevin Pringle (57KB pdf) (parliament.scot)

Written submission from Duncan Hamilton (135KB pdf) (parliament.scot)

XX021 contained within Phase1FN21.pdf (parliament.scot)

YY056 contained within Phase1FN28.pdf (parliament.scot)

SGHHC OR 25 August 2020

Fairness at work policy

Written statement and timeline: Investigation of complaints

Letter from FM to Permanent Secretary 6 June 2018

Phase 4/MC3

INV675 contained within SP_SGHHC_-_FN42.pdf (parliament.scot)

Copy of the OR from SGHHC evidence session on 08/12/2020

Copy of the OR from SGHHC evidence session 08/02/2021

Scottish Government written statement, 20 July 2020 (parliament.scot)

SP_committee_-_JR_-_timeline_-_7_September_2020(1).pdf (parliament.scot)

SP_SGHHC_-_JR_-_Additional_timeline_-_26_October_2020_-_Watermark_version_(JR).pdf (parliament.scot)

Written submission from the Lord Advocate following the evidence session on 17 November 2020 (201KB pdf) (parliament.scot)

Lord_Advocate.pdf (parliament.scot)

SGHHC - 8 Sept 2020

Copy of OR from evidence session on 3rd November 2020

Copy of OR from evidence session on 17th November 2020 - gov.scot (www.gov.scot)

LA14+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot)

LA22+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot)

OCT+-+LA13+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot)

OCT-+LA09+-LPP-+5-+FINAL-+Committee+copy.pdf (www.gov.scot)

OCT-+LA12+-LPP-+5-+FINAL-+Committee+copy.pdf (www.gov.scot)

OCT-+LA20+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot)

OCT-+LA05+-LPP-+5-+FINAL-+Committee+copy.pdf (www.gov.scot)

LA16+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot)

OCT+-+LA21+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot)

OCT-+LA07+-LPP-+5-+FINAL-+Committee+copy.pdf (www.gov.scot)

Note from DGODO to Perm Sec re Judicial review – Next steps

LA12

OCT+-+LA18+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot)

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 these websites, then please contact us again and we will send you a paper copy.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections s.26(c) (Contempt of court), s.30(b)(i) (free and frank provision of advice), s.30(c) (the effective conduct of public affairs), s.35(1)(g) (prejudice to public authority functions), s.36(1) (confidentiality of communications), and s.38(1)(b) (personal information) of FOISA apply to that information. The reasons why those exemptions apply are explained below.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This is because it is likely that disclosure would likely 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 other officials before the Scottish Government reaches a settled view. Disclosing the content of free and frank advice on personnel and legal aspects will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive and controversial issue.

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 free and frank advice to other officials, as part of the process of exploring and refining the Government’s position. 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. Disclosure is likely to undermine the full and frank discussion of issues, which in turn will undermine the quality of the decision making process, which would not be in the public interest. An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on matters relating to the requests by the Scottish Parliament Committee on the Scottish Government's Handling of Harassment Complaints, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on such issues in future. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption. 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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

An exemption under section 35(1)(g) of FOISA as read with section 35(2)(b) of FOISA applies. This exemption applies because disclosure would be likely to prejudice substantially the exercise by the Scottish Government of its functions in relation to ascertaining whether a person is responsible for conduct which is improper. We have concluded that disclosure of the outcome would cause substantial prejudice to the Scottish Government’s ability to process future complaints of improper conduct because it is likely to deter other complainers from coming forward in future. We consider that those who make such complaints have a reasonable expectation of confidentiality, and that this is particularly important where there is an imbalance of power (as when a civil servant makes a complaint about a current or former Minister). Therefore, we consider that if future complainers reasonably apprehend that information about their complaints of improper conduct against current or former Ministers will be disclosed publicly, then they would be substantially inhibited from making complaints. We also consider that persons complained about are less likely to cooperate voluntarily with the process if they apprehend that information provided by them in the context of the process is likely to be disclosed outwith the process. This would substantially prejudice the Scottish Government’s ability to process such complaints, and so would constitute substantial prejudice for the purposes of the exemption.

This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of the 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 general public interest in disclosure as part of open and transparent government, and to inform public debate. We also recognise that there is a public interest in understanding how the Scottish Government deals with such a complaint. However, we consider that there is a greater public interest in ensuring that future complainers are not deterred from making complaints of improper conduct, and in respecting the confidentiality which they reasonably expect as part of that process. The function of ascertaining whether a person is responsible for conduct which is improper would be frustrated in its entirety if complainers are unwilling to make such complaints because they reasonably apprehend that information about the complaints, including the ultimate outcome, will be made public.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some 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.

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 because there is interest in how the Scottish Government handled the briefing for the Scottish Parliament's Committee on the Scottish Government's Handling of Harassment Complaints. However, this is outweighed by the public interest in maintaining the ability of the Scottish Government to seek, or not seek, as appropriate, legal advice, and on whether legal advice had been requested on particular matters.

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, for example names and personal information of staff in grades below the Senior Civil Service 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.

An exemption under section 26(c) of FOISA (prohibitions on disclosure: contempt of court) applies to the information because disclosure might identify complainers who are subject to an order under the Contempt of Court Act 1981. The order was made by the court in the context of the Judicial Review proceedings. 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.

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.