Review of complaints handling in relation to policing: FOI release

FOI reference: FOI/18/01815
Date received: 29 June 2018
Date responded: 26 July 2018

Information requested

Information contained in the appointment process of Elish Angiolini to review the processes for handling complaints against the police and investigating serious incidents and alleged misconduct, and information on how much she is to be paid for this review and information contained in communications, documents & discussions which led to the creation of this review.

Response

I enclose a copy of some of the information you requested.

Some of the information you have requested is available on The Scottish Government Website (this includes the related News Release News Release, Terms of Reference and the Parliamentary Statements delivered by the Cabinet Secretary for Justice Terms of Reference and the Parliamentary Statements delivered by the Cabinet Secretary for Justice on 29 November 2017 29 November 2017 and 19 June 2018 19 June 2018.

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 the website(s) listed, then please contact me again and I 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 an exemption(s) under section(s) s.29(1)(a) (policy formulation), s.29(1)(b) (Ministerial communications), s.29(1)(c) (Advice by the Law Officers), s.30(a) (substantial prejudice to the convention of collective responsibility of Scottish Ministers), s.30(b)(i) (substantial inhibition of free and frank provision of advice), s.30(b)(ii) (substantial inhibition of free and frank exchange of views for the purposes of deliberation), s. 36(1) (Confidentiality in legal proceedings) and s.38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

Reasons for not providing information

An exemption applies under Section 29(1)(a) – formulation or development of government policy.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government's policy on the Review of Complaints Handling, Investigations and Misconduct Issues in Relation to Policing. 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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications.

An exemption applies under Section 29(1)(b) – Ministerial communications.

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers. 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 a private space within which policy positions can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy making process.

An exemption applies under Section 29(1)(c) – Law Officers' advice.

An exemption under section 29(1)(c) of FOISA (Law Officers' advice) applies to some of the information requested because it relates to the provision of advice by the Law Officers.

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 the Law Officer Convention (reflected in the Scottish Ministerial Code), which requires that advice provided by the Law Officers should not be divulged except in exceptional circumstances and with the prior consent of the Law Officers. Parliament has also given particular statutory protection to the content of Law Officer advice or requests for their advice to ensure that the government is able to obtain frank and full legal advice in confidence from them (see for example the HM Treasury and the Information Commissioner case, 21 July 2009).

An exemption applies under Section 30(a) – convention of collective responsibility of Scottish Ministers An exemption under section 30(a) of FOISA (convention of collective responsibility of Scottish Ministers) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially the convention of the collective responsibility of Scottish Ministers for Scottish Government policy on the Review. Government in Scotland, as in the rest of the UK, has long worked under the convention that Ministers are collectively responsible for policy and its delivery. Collective responsibility requires collective discretion, and ensures that Ministers can express their views frankly in internal discussion of an issue while maintaining a united front once decisions have been reached. Disclosing communications between individual Ministers would prejudice substantially the maintenance of the convention.

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 collective responsibility for the Scottish Government's policy on the Review, once a settled policy position has been reached. Disclosure of these internal discussions between Ministers would be likely to have the effect of undermining the Government's position on establishing Reviews, and thus the effectiveness of those Reviews, which would not be in the public interest.

Sections 30(b)(i) and 30(b)(ii) – free and frank exchange of views for the purposes of deliberation Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final lines to take are used. Disclosing the content of free and frank briefing material on the development of the Review will substantially inhibit such briefing in the future, particularly because these discussions relate to sensitive issues such as the handling of complaints against the police and allegations of misconduct.

These exemptions are 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 and views to Ministers in briefing and lines to take. It is clearly in the public interest that Ministers can properly provide sound information to Parliament (to which they are accountable), and robustly defend the Government's policies and decisions. 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 and views in the future, which would not be in the public interest.

An exemption applies under Section 36(1) – legal advice.

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.

An exemption applies under 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 a small amount 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 Schedule 1 to the Data Protection Act 1998. 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.

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FOI-18-01815 - related documents.pdf

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