- 13 Feb 2019
Date received: 15 Jan 2019
Date responded: 12 Feb 2019
1. Full information of who instructed Judith MacKinnon to meet/counsel the complainants making allegations of misconduct against Alex Salmond.
2. Full information of who instructed Judith MacKinnon to conduct the investigation into allegations of misconduct against Alex Salmond.
3. Full information of who was responsible for reporting the allegations of misconduct against Alex Salmond to the police. If it is not possible to disclose the name of the person, please provide their broad role within the Scottish Government e.g. permanent secretary, director-general, etc. Please also provide any details regarding who, if anybody, signed off on the decision to report the allegations to the police.
In response to your first question, 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.
In response to your second question, the Investigating Officer was appointed by the Director of People.
In response to your third question, while our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section 35(1)(c) of FOISA applies to some of the information. The reason why this exemption applies are explained in the Annex to this letter.
REASONS FOR NOT PROVIDING INFORMATION
An exemption applies, subject to the public interest test.
Exemptions under section 35(1)(c) applies 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.
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