Publication - FOI/EIR release

Various questions on case against Former First Minister: FOI release

Published: 13 Sep 2019
Part of:
Public sector

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

Published:
13 Sep 2019
Various questions on case against Former First Minister: FOI release
FOI reference: FOI/19/01942
Date received: 12 Aug 2019
Date responded: 13 Sep 2019
Information requested

You asked for:

1. Please specify the job description of Ms Katy Bowman, Special Adviser to the First Minister both at present and in 2014.

2. Please identify the line management responsibilities of Ms Liz Lloyd, First Minister’s chief of staff, to Ms Katy Bowman, Special Adviser to the First Minister.

3. Please identify all recorded contact by meeting, email, Whats App, text and government phone from 1 August 2018 to 8 January 2019 between Ms Katy Bowman, special adviser, and civil servant [redacted].

4. Please list all circulars from the Permanent Secretary and other officials to Scottish Government staff on co-operating with Police Inquiries.

5. Please list any circulars from Permanent Secretary and other officials outlining to staff the law on conspiracy in terms of collusion of information provided to police inquiries.

6. Please list all meetings, phone calls, electronic communications with Scottish Government staff members contacted by Ms Liz Lloyd, chief of staff to the First Minister, on the subject of investigation into Mr Salmond from 1 August 2018 to 8 January 2019.

7. Please list times and dates and subject matter of any meetings between Detective Chief Superintendent Lesley Boal and Permanent Secretary Ms Leslie Evans from March 2018 to date.

8. Please list times and dates and subject matter of any meetings between the Lord Advocate and Ms Leslie Evans from January 2018 to date.

9. Please identify all payments to lawyers representing Mr Salmond following the agreement by the Scottish Government to meet all expenses in the Judicial Review which declared the Scottish Government investigation into Mr Salmond to be unlawful.

10. Please estimate the cost to the Scottish Government of all legal expenses incurred by the Scottish Government in defending the Judicial Review including an estimate of the cost of Scottish Government legal department staff time on this legal case.

11. Further to the FOI answer of 29 May, please list attendance of Scottish Government officials and Ministers and Special Advisers at each of the 17 meetings and conference calls with counsel defending the judicial review between 23 August and 3 January 2019.

12. Please state the full and complete membership of the Scottish Government team defending the Judicial Review.

13. Please state whether the Scottish Government have hired additional staff or commissioned PR advice on the press and media handling of the circumstances of the Judicial Review result, the criminal case against Mr Salmond and the upcoming Parliamentary Inquiry and detail the contracts, costs and personnel concerned.

14. Please state membership of any continuing Scottish Government group preparing Government Response to the Judicial Review, the criminal case against Mr Salmond and the upcoming Parliamentary Inquiry.

Response

1. Please specify the job description of Ms Katy Bowman, Special Adviser to the First Minister both at present and in 2014.

In relation to Ms Bowman’s current position, Special Advisers are appointed in accordance with Part 1 of the Constitutional Reform and Governance Act 2010 by the First Minister as a Special Adviser for the purpose of providing assistance to the Scottish Ministers. As required under that Act, Scottish Ministers report annually to Parliament about special advisers serving the Scottish Government. Ms Katy Bowman’s specific responsibilities are set out in the last report: https://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-17596&ResultsPerPage=10.

The Code of Conduct for Special Advisers and the Model contract for Special Advisers apply to all Special Advisers and is available from: https://www.gov.scot/publications/special-advisers-code-of-conduct-and-model-contract/.

Ms Katy Bowman was not a Special Adviser in 2014 so I confirm that we do not hold the information you have requested. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested in relation to that year.

2. Please identify the line management responsibilities of Ms Liz Lloyd, First Minister’s chief of staff, to Ms Katy Bowman, Special Adviser to the First Minister.

All Special Advisers are appointed by the First Minister and report to the First Minister. However the Chief of Staff has responsibility for day to day management of the team of Special Advisers.

3. Please identify all recorded contact by meeting, email, Whats App, text and government phone from 1 August 2018 to 8 January 2019 between Ms Katy Bowman, special adviser, and civil servant [redacted].

4. Please list all circulars from the Permanent Secretary and other officials to Scottish Government staff on co-operating with Police Inquiries.

5. Please list any circulars from Permanent Secretary and other officials outlining to staff the law on conspiracy in terms of collusion of information provided to police inquiries.

In relation to your questions 3, 4 and 5, we do endeavour to provide information whenever possible. However, 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 35(1)(c) (substantial prejudice to the administration of justice) of FOISA would apply to that information. This exemption would apply because disclosure of some information could prejudice court proceedings by heightening public speculation in advance of trial.. 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.

6. Please list all meetings, phone calls, electronic communications with Scottish Government staff members contacted by Ms Liz Lloyd, chief of staff to the First Minister, on the subject of investigation into Mr Salmond from 1 August 2018 to 8 January 2019.

While our aim is to provide information whenever possible, in this instance 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 the Scottish Government. 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.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. For example, you could restrict your request to a specific business area of the Scottish Government, as this would allow us to limit the searches that would require to be conducted. You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

7. Please list times and dates and subject matter of any meetings between Detective Chief Superintendent Lesley Boal and Permanent Secretary Ms Leslie Evans from March 2018 to date.

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 under section 35(1)(a) (law enforcement) and section 35(1)(c) (substantial prejudice to the administration of justice) apply to that information. The reasons why these exemptions apply are explained in Annex A to this letter

8. Please list times and dates and subject matter of any meetings between the Lord Advocate and Ms Leslie Evans from January 2018 to date.

We have interpreted your request as being for information about meetings between the Lord Advocate and the Permanent Secretary, rather than other meetings which the Lord Advocate and the Permanent Secretary may both have attended. We have included pre-arranged phone calls in our response.

Date Time Subject matter
15 January 2018 13:30 Coffee
28 March 2018 11:30 Call (End Year Review (staff))
1 August 2018 12:00 Call (no subject recorded)
13 August 2018 16:10 Call (no subject recorded)
25 July 2019 12:30 Call (End Year Review (staff))

9. Please identify all payments to lawyers representing Mr Salmond following the agreement by the Scottish Government to meet all expenses in the Judicial Review which declared the Scottish Government investigation into Mr Salmond to be unlawful.

The information you have requested is available from https://www.gov.scot/publications/foi-19-01940/.

10. Please estimate the cost to the Scottish Government of all legal expenses incurred by the Scottish Government in defending the Judicial Review including an estimate of the cost of Scottish Government legal department staff time on this legal case.

The net cost of external legal fees was £118,523.

Section 17(1) of FOISA (information not held) requires the Scottish Government to notify you if it does not have the information you requested in relation to the cost of Scottish Government Legal Directorate staff. The Scottish Government does not have this information because these staff involved in this case are civil servants employed by the Scottish Ministers. Dealing with this case was part of the normal range of duties undertaken by a number of different civil servants in the Scottish Government Legal Directorate. Civil servants receive a salary rather than being separately remunerated for dealing with particular matters. In addition, they do not record the proportion of their time that they spend working on particular matters as a matter of course. It is therefore not possible to say how much was paid to lawyers employed by the Scottish Government for dealing with this matter. The Scottish Government does not have any business need to hold that information and therefore it is not held.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

11. Further to the FOI answer of 29 May, please list attendance of Scottish Government officials and Ministers and Special Advisers at each of the 17 meetings and conference calls with counsel defending the judicial review between 23 August and 3 January 2019.

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 38(1)(b) (personal information) and 30(c) (substantial prejudice to effective conduct of public affairs) apply to that information. The reasons why these exemptions apply are explained in Annex A to this letter.

The information you request is set out below. The FOI response of 29 May listed 17 meetings between 23 August and 7 January. We have included the details for the meeting of 7 January.

23 August 2018: Permanent Secretary; [exempt information].

4 September 2018: [exempt information], [exempt information], Dr Nicola Richards, [exempt information], [exempt information], [exempt information], [exempt information].

11 September 2018: [exempt information], [exempt information], [exempt information], [exempt information], [exempt information].

27 September 2018: [exempt information].

19 October 2018: Judith MacKinnon, Dr Nicola Richards, James Hynd, [exempt information].

23 October 2018: [exempt information], [exempt information], [exempt information], [exempt information], [exempt information], [exempt information].

25 October 2018: Elizabeth Lloyd, [exempt information].

2 November 2018: [exempt information], Elizabeth Lloyd, [exempt information], [exempt information], [exempt information], [exempt information], [exempt information].

13 November 2018: First Minister, Elizabeth, Lloyd, Permanent Secretary.

10 December 2018: [exempt information], [exempt information], [exempt information], [exempt information], [exempt information], [exempt information].

18 December 2018 – [exempt information], [exempt information].

19 December 2018: [exempt information], [exempt information], [exempt information].

2 January 2019: [exempt information], [exempt information].

3 January 2019 (3): [exempt information], [exempt information]

7 January 2019: [exempt information], [exempt information], [exempt information], [exempt information].

12. Please state the full and complete membership of the Scottish Government team defending the Judicial Review.

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 30(c) (substantial prejudice to effective conduct of public affairs) of FOISA applies to that information. The reasons why that exemption applies are explained in Annex A to this letter.

13. Please state whether the Scottish Government have hired additional staff or commissioned PR advice on the press and media handling of the circumstances of the Judicial Review result, the criminal case against Mr Salmond and the upcoming Parliamentary Inquiry and detail the contracts, costs and personnel concerned.

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 in relation to this item. The reason Scottish Government does not hold any information is that no additional staff were hired and no PR advice was commissioned in relation to the press and media handling of the circumstances of the Judicial Review result, the criminal case against Mr Salmond and the upcoming Parliamentary Inquiry.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

14. Please state membership of any continuing Scottish Government group preparing Government Response to the Judicial Review, the criminal case against Mr Salmond and the upcoming Parliamentary Inquiry.

Support for the Scottish Government’s engagement with inquiries relating to its handling of harassment complaints made about the former First Minister is provided by the Organisational Continuity Team, which reports to Kenneth Hogg, Director, Organisational Continuity.

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 exemption under section 38(1)(b) of FOISA (personal information), applies to that information. The reasons why that exemption applies are explained in Annex A to this letter.

Reasons for not providing information - Annex
An exemption applies

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 applies, subject to the public interest test

An exemption under section 35(1)(a) of FOISA (law enforcement), applies to some parts of the information requested because disclosure would, or would be likely to, adversely impact on the operational effectiveness of Police Scotland in the context of ongoing criminal investigations. 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 because releasing the redacted information could provide an understanding of how Police Scotland conduct investigations. However, this is outweighed by the potential consequences on the prevention and investigation of crime.

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.

An exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to all of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on the judicial review, 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 on this and other legal issues. 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.

About FOI
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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