- 12 Feb 2019
Date received: 10 Jan 2019
Date responded: 7 Feb 2019
“Please could you detail what process was followed by the Scottish government to appoint Judith MacKinnon as the case officer looking into allegations against Alex Salmond?
Please could I see all emails between staff concerning her appointment to the case.
Who was responsible for ensuring procedure in her appointment and the investigation of the case was following protocol?
At what point did that person flag the government might have broken that protocol by appointing someone who had previous contact with the complainant?
Please could I see those emails between staff.”
I enclose a copy of some of the information you requested.
The answer to your first question is that the process for appointing Judith Mackinnon as investigating officer followed the process set out in the procedure for handling of harassment complaints involving current or former ministers, which is available online at https://www.gov.scot/publications/handling-of-harassment-complaints-involving-current-or-former-ministers/.
While our aim is to provide information whenever possible, for your second request we are unable to provide some of the information you have requested because exemptions under sections 35(1)(c) and 38(1)(b) of FOISA apply to some of the information. The reasons why those exemptions apply are explained in the Annex to this letter. Therefore a redacted email about her appointment is attached.
The answer to your third request is set out in paragraph 10 of the the procedure for handling of harassment complaints involving current or former ministers.
In response to your fourth and fifth requests, under section 18(1) of FOISA, a public authority may refuse a request where:
if the information existed and was held by the authority, it would be exempt from release under any of sections 28 to 35, 38, 39(1) or 41 of FOISA; and
the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.
In this instance, if the information you request did exist or was held by us, an exemption under section 35(1)(c) of FOISA would apply to that information. This exemption would apply because if the information you request did exist or was held by us, disclosure would, or would be likely to, prejudice substantially the administration of justice. We also consider that to reveal whether the information you have requested exists, or is held by the Scottish Government, would be contrary to the public interest. For these reasons, we are refusing your request under section 18(1) of FOISA.
REASONS FOR NOT PROVIDING INFORMATION
Exemptions under section 35(1)(c) and 38(1)(b) of FOISA apply to the information you have requested.
Section 35(1)(c) applies because disclosure would, or would be likely to, prejudice substantially the administration of justice. This exemption recognises that the disclosure of some information could prejudice court proceedings.
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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the substantial public interest in ensuring that the courts in Scotland can operate without trials being prejudiced. In our assessment, release of this information could prejudice a case currently in court in Scotland.
An exemption(s) under section 38(1)(b) of FOISA applies to some of the information you have requested because it is personal data, the disclosure of which would contravene data protection principles.
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.
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.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House