Publication - FOI/EIR release

Judicial Review against the Scottish Government by former First Minister: FOI release

Published: 29 May 2019

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

Published:
29 May 2019
Judicial Review against the Scottish Government by former First Minister: FOI release
FOI reference: FOI/19/01156
Date received: 24 Apr 2019
Date responded: 23 May 2019
Information requested

1. List and details of meetings and phone calls between Leslie Evans, Permanent Secretary to the Scottish Government and senior civil servant James Hynd between 1 October 2017 and 31 December 2017.

2. Itemised list of meetings, phone calls, emails, letters and notes between Leslie Evans, Permanent Secretary to the Scottish Government and Mr Andrew Penman, general secretary of the First Division Association of Civil Servants between 1 October 2017 and 31 December 2017.

3. A copy of the engagements diary of Leslie Evans, Permanent Secretary to the Scottish Government for the week beginning 20 November 2017.

4. A list of the date and number of meetings with the Scottish Government counsel defending the Judicial Review petitioned by Mr Alex Salmond and attended by any one or more of the following - First Minister Nicola Sturgeon, Ms Leslie Evans, Permanent Secretary, Ms Judith McKinnon, Deputy director of People, Ms Elizabeth Lloyd, Chief of Staff to the First Minister, and the Lord Advocate.

5. The full job description and specific duties of Ms Barbara Allison, Director of Ministerial Support of the Scottish Government.

6. An itemised list of all meetings arranged in the First Minister's offices in both St Andrew's House and the Scottish Parliament for the month of November 2017, together with a full and comprehensive list of everyone who was in attendance at each of these meetings.

7. A full copy of the engagements diary of Mr Donald Cameron, Private Secretary to the Permanent Secretary for the week beginning 17 December 2018.

8. A copy of all staff notices and emails sent out by the Permanent Secretary for the month of October 2017 to date.

9. A list of all meetings (together with location details and details of other attendees) between Mr Donald Cameron, Ms Elizabeth Lloyd, Chief of Staff, and Mr John Somers, Principal Private Secretary to the First Minister for the month of November 2017, together with the subjects discussed.

10. Copies of any correspondence, details of meetings and minutes of meetings between the First Minister and the Permanent Secretary at which the Judicial Review hearing of 8 January was discussed.

11. A list of meetings between Permanent Secretary Ms Leslie Evans and the Chief Constable of Police Scotland, Iain Livingstone from August 2018 to date and the subjects discussed at each meeting.

12. A list of meetings and contacts between Ms Elizabeth Lloyd, Chief of Staff to Nicola Sturgeon and journalists from the Daily Record newspaper and/or representatives of the group of which it is part for the month of August 2018 together with details of any other contacts between Government ministers, Government press officers and advisers, and civil servants and the Record Group in this period.

Response

 

An exemption under section 38(1) of FOISA (personal information), applies to some parts of the information requested because it is personal data of a third party, for example names of individuals or other personal data, and that information has been redacted or not disclosed. 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 39(1) (health and safety) of FOISA applies to some parts of the information you have requested. This is because disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual. 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 the First Minister’s and Permanent Secretary’s travel arrangements. However, this is outweighed by the public interest in the safety of the First Minister and Permanent Secretary. An exemption under section 35(1)(c) (the administration of justice) of FOISA applies to some parts of the information you have requested. This is 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 current proceedings.

I am providing the information you have requested that is not covered by these exemptions on a question by question basis below.

1. List and details of meetings and phone calls between Leslie Evans, Permanent Secretary to the Scottish Government and senior civil servant James Hynd between 1 October 2017 and 31 December 2017.
Leslie Evans and James Hynd attended meetings on 7 November 2017 (08:45 – 9:00), 20 November 2017 (13:30 – 14:00) and 21 November 2017 (16:30 – 17:00). The subject of the meeting of 7 November was “Quick word”, the meeting of 20 November had no subject and the subject of the meeting on 21 November was “Social Media Priority Meeting”.
Section 17(1) of FOISA (information not held) requires Scottish Government to notify you if it does not have the information you requested. The Scottish Government does not hold any information of phone calls between Leslie Evans and James Hynd between 1 October 2017 and 31 December 2017.

2. Itemised list of meetings, phone calls, emails, letters and notes between Leslie Evans, Permanent Secretary to the Scottish Government and Mr Andrew Penman, general secretary of the First Division Association of Civil Servants between 1 October 2017 and 31 December 2017.
Andrew Penman is not the General Secretary of the FDA. We have therefore also searched for Dave Penman who is the current post holder and has held the post since 2012.
Section 17(1) of FOISA (information not held) requires Scottish Government to notify you if it does not have the information you requested. The Scottish Government does not hold any information of meetings, calls or correspondence between Leslie Evans and Andrew Penman or between Leslie Evans for Dave Penman between 1 October 2017 and 31 December 2017.

3. A copy of the engagements diary of Leslie Evans, Permanent Secretary to the Scottish Government for the week beginning 20 November 2017.
The information held in the engagements diary of Leslie Evans for the week beginning 20 November 2017 is shown in Annex A.

4. A list of the date and number of meetings with the Scottish Government counsel defending the Judicial Review petitioned by Mr Alex Salmond and attended by any one or more of the following - First Minister Nicola Sturgeon, Ms Leslie Evans, Permanent Secretary, Ms Judith McKinnon, Deputy director of People, Ms Elizabeth Lloyd, Chief of Staff to the First Minister, and the Lord Advocate.
Meetings attended by Scottish Government Counsel and one or more of the specified persons on or after the JR proceedings were initiated took place on the following dates:
 23 August 2018
 4 September 2018
 11 September 2018
 27 September 2018
 19 October 2018
 23 October 2018
 25 October 2018
 2 November 2018
 13 November 2018
 10 December 2018
 18 December 2018
 19 December 2018
 2 January 2019
 3 January 2019 (3 meetings)
 7 January 2019
We have included meetings and pre-arranged conference or phone calls in this list.

5. The full job description and specific duties of Ms Barbara Allison, Director of Ministerial Support of the Scottish Government.
The role is responsible for:
1. leading and managing a team of people who support Ministers and the Executive Team to deliver the Government's Programme for Government in particular Communications, Private Office, FM Policy & Delivery Unit, Facilities Services, Smarter Workplaces, and Security and Business Continuity
2. the delivery of the Smarter Workplace Programme and the Facilities Services function across the SG estate
3. Contributing to Executive Team, member of Corporate Boards - People; Place; Performance; and Constitution & Europe
4. Provision of high quality advice and services to the Scottish Government in the following areas:
a) security improvement programme and support to the Security and Business Continuity Governance Board
b) physical security covering government standards
c) personnel security including national security vetting
d) business continuity planning.
5. ET Ally for LGBTI issues                                                                                                   6. Chair of the Smarter Workplace Board; Chair of Corporate Health & Safety Committee, Chair of the Security and Business Continuity Governance Board

6. An itemised list of all meetings arranged in the First Minister's offices in both St Andrew's House and the Scottish Parliament for the month of November 2017, together with a full and comprehensive list of everyone who was in attendance at each of these meetings.
A list of meetings that took place in the First Minister’s Offices in both St Andrews House and the Scottish Parliament is shown at Annex B. This list contains meetings held in the First Minister’s offices at these locations, not all meetings that the First Minister attended in these buildings.
Section 17(1) of FOISA (information not held) requires Scottish Government to notify you if it does not have the information you requested. The Scottish Government does not hold a list of the actual attendees in relation to all of the meetings covered by your request. Where Scottish Government does not hold this, we have supplied a list of invitees.

7. A full copy of the engagements diary of Mr Donald Cameron, Private Secretary to the Permanent Secretary for the week beginning 17 December 2018.
The information held in the engagements diary of Donald Cameron for the week beginning 17 December 2018 is shown in Annex C.

8. A copy of all staff notices and emails sent out by the Permanent Secretary for the month of October 2017 to date.
Copies of the staff notices sent out by the Permanent Secretary for the month of October to date are show in Annex D. All staff notices are sent by email.

9. A list of all meetings (together with location details and details of other attendees) between Mr Donald Cameron, Ms Elizabeth Lloyd, Chief of Staff, and Mr John Somers, Principal Private Secretary to the First Minister for the month of November 2017, together with the subjects discussed.

Date Invitees Location Time Diary entry
16/11/2017 Donald Cameron, John Somers SAH 16:00 - 16:30 “Catch up”
21/11/2017 Donald Cameron, John Somers, Liz Lloyd SAH 17:30 - 18:00 “Catch up”
24/11/2017 Donald Cameron, John Somers, Liz Lloyd, James Hynd, [redacted] SAH 13:15 - 14:00 “Catch up”

Section 17(1) of FOISA (information not held) requires Scottish Government to notify you if it does not have the information you requested. The Scottish Government does not hold a list of the confirmed attendees in relation to all of the meetings covered by your request. Where Scottish Government does not hold this, we have supplied a list of invitees.

10. Copies of any correspondence, details of meetings and minutes of meetings between the First Minister and the Permanent Secretary at which the Judicial Review hearing of 8 January was discussed. Section 17(1) of FOISA (information not held) requires Scottish Government to notify you if it does not have the information you requested. The Scottish Government does not hold the information you request in relation to any correspondence, details of meetings and minutes of meetings between the First Minister and the Permanent Secretary at which the Judicial Review hearing of 8 January was discussed. 

11. A list of meetings between Permanent Secretary Ms Leslie Evans and the Chief Constable of Police Scotland, Iain Livingstone from August 2018 to date and the subjects discussed at each meeting.
The following meeting took place between the Permanent Secretary Leslie Evans and the Chief Constable of Police Scotland, Iain Livingstone from August 2018 to date:

Date Time Title Attendees Topics discussed
9 April 2019 10:00 - 10:45 Perm Sec - Chief Constable of Police Scotland Leslie Evans, Iain Livingstone and Hilary Pearce  EU Exit preparations
 Violence Reduction
 UK Strategic Capability/ mutual aid
 Senior leadership, diversity
 Budget and other pressures


12. A list of meetings and contacts between Ms Elizabeth Lloyd, Chief of Staff to Nicola Sturgeon and journalists from the Daily Record newspaper and/or representatives of the group of which it is part for the month of August 2018 together with details of any other contacts between Government ministers, Government press officers and advisers, and civil servants and the Record Group in this period.
Section 17(1) of FOISA (information not held) requires Scottish Government to notify you if it does not have the information you requested. The Scottish Government does not hold the information you request in relation to meetings and contacts between Elizabeth Lloyd and journalists from the Daily Record newspaper and/or representatives of the group of which it is part for the month of August 2018.
All Special Advisers and Government Ministers hold roles which involve regular contact with journalists. They may therefore have come into contact with Daily Record journalists / representatives during the period in question.
In relation to the part of your request relating to details of any other contacts between Government ministers, Government press officers and advisers, and civil servants and the Record Group in this period, the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600. The reason for this is that to locate and retrieve that information we would need to conduct a search of all of the records of all Scottish Government civil servants, Ministers and advisers. Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

In your request, you also set out that;

1. “In her recent letter to the Parliamentary Committee, I understand the Permanent Secretary referred to records being automatically deleted.
I am concerned to discover whether this process has already affected my requests and/or any of the information therein or relevant there to. I would be most grateful if you could enlighten me about this. And perhaps you are in a position to re-assure me that none of the information which I am properly requesting is being withheld, has already been destroyed or will be destroyed.”
Our response:
It is an offence under section 65 FOISA to destroy or conceal a record which is the subject of a request for information.
Our Corporate Records Management Plan makes it clear to staff that material of importance must be stored to the corporate record which, since 2005, has been our electronic records and document management system.
It’s important to note that material saved to the corporate record is not subject to automated deletion after 14 months and is retained in accordance with the retention and disposal schedules outlined in our Corporate Records Management Plan. The Records Management Plan is fully compliant with the Public Records (Scotland) Act 2011.
Automated deletion occurs only to items held in Outlook mailboxes which have not been saved to the corporate record. The archival and deletion process for Outlook content has been in place since 2008 and is standard industry practice in relation to digital information.

2. “I'm sorry to say I also find it inherently somewhat surprising for example that there were only two meetings arranged in the First Minister's office in St Andrew’s House for the entire month of November 2018. Or were there perhaps others not so far listed or disclosed?”
Our response:
We responded to item 3 of your request dated 21 February 2019 in our response to that request dated 25 March 2019. I have not interpreted what you say as a request for a review of your earlier FOI request, however if this is not correct and you do wish to make such a request, then please confirm and we will take that forward.

 

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.

 

foi-19-01156 Annexes A,B,C, & D

30 page PDF
499.8 kB

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG