Former Chief Constable of Police Scotland: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002.
FOI reference: FOI/18/00131
Date received: 14 February 2018
Date responded: 13 March 2018
Information requested
Copies of all correspondence made or received by the Cabinet Secretary for Justice, Michael Matheson, and his office in relation to Phil Gormley's case, from July 2017.
Response
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 30(b)(i) (free and frank provision of advice), 30(c) (effective conduct of public affairs), 36(1) (confidentiality in legal proceedings), 36(2) (actionable breach of confidence) and 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained below.
In addition, some of the information you have requested formed part of the papers for the Scottish Parliament Public Audit and Post-legislative Scrutiny Committee session of 25 January, and is available online at the following link:
http://www.parliament.scot/S5Public_Audit/Meeting%20Papers/Agenda_and_Papers-_25_Jan_2018.pdf
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.
REASONS FOR NOT PROVIDING INFORMATION
An exemption applies
Section 36(2) – actionable breach of confidence
An exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some of the information requested because it was obtained in confidence from a third party, and disclosure would constitute an actionable breach of confidence. This is because the information is confidential and was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality. 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.
Section 38(1)(b) – personal data of a third party
An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. We have applied this exemtion to the names of all junior officials, and to all telephone numbers.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 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 a small amount of the information requested. This exemption applies because revealing the source of the Scottish Government's legal advice 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. 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.
Section 36(1) – legal advice
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the material, because it refers to 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.
Section 30(b)(i) – free and frank provision of advice
An exemption under section 30(b)(i) (free and frank provision of advice) of FOISA applies to a small amount of the information. 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 to discuss issues and within which to provide free and frank advice to Ministers. Disclosing the content of free and frank advice intended to inform Ministers and officials about current issues regarding their engagement with stakeholders, will substantially inhibit the provision of such advice in the 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 allowing a private space within which officials can discuss issues and provide full and frank advice to Ministers, regarding discussions with stakeholders. This private space is essential to enable all issues to be properly considered in advance of engagement with stakeholders. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the decision making process and the quality of stakeholder engagement, 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
The Scottish Government
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