Publication - FOI/EIR release

Documents relating to case against former First Minister: FOI release

Published: 29 Jan 2020
Part of:
Public sector

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

Published:
29 Jan 2020
Documents relating to case against former First Minister: FOI release
FOI reference: FOI/202000010911
Date received: 27 Dec 2019
Date responded: 28 Jan 2020
Information requested

You asked for "any and all information held by the Scottish Government on its investigation into former First Minister Alex Salmond over claims of sexual impropriety. The documents I would like to request should include, but not be limited to, minutes of meetings, emails and official reports."

Response

I enclose a copy of some of the information you requested. The Permanent Secretary released a statement on the completion of the investigation. This can be found at
https://www.gov.scot/publications/permanent-secretary-statement-on-complaints-against-former-first-minister-alex-salmond/
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 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 most of the information you have requested because exemptions under sections 30(b) (free and frank
provision of advice and views), 35(1)(c) and (g) (administration of justice), 36(1)( (legal privilege) and 38(1)(b) (personal information) of FOISA applies to that information. The reasons why those exemptions apply are explained below.
Information provided outwith FOISA

You may be interested in the First Minister's comments in relation to the investigation in her statement to the Scottish Parliament on 8 January 2019. The full statement can be found at http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11871&i=107364.
REASONS FOR NOT PROVIDING INFORMATION

Section 38(1)(b) (personal information), not subject to the public interest test
An exemption under section 38(1)(b) of FOISA applies to some of the information you have requested because it is personal data of a third party, for example names of individuals or other personal data and 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.

Section 36(1) (legal privilege), subject to the public interest test.
An exemption under section 36(1) of FOISA applies to some of the information you have requested because some of the documents and correspondence are covered by 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 private or public organisation.

Section 35(1)(c) (administration of justice), subject to the public interest test
An exemption under section 35(1)(c) of FOISA applies to some 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 live criminal 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 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. 

Section 35(1)(g) (prejudice to public authority in the exercise of its functions), subject to the public interest test
An exemption under section 35(1)(g) as read with section 35(2)(b) of FOISA applies to some of the information you have requested. This is because disclosure would, or would be likely to, prejudice substantially the exercise by the Scottish Government of its functions in relation to ascertaining whether a person is responsible for conduct which is improper. Disclosing information relating to the internal investigation will substantially undermine the future effectiveness of those processes.
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 substantial public interest in ensuring that investigations can be conducted effectively, appropriately and without significant inhibition.

Section 30(b)(i) and (ii) (free and frank exchange of advice and views), subject to the public interest test.
An exemption under section 30(b)(i) and (ii) (free and frank exchange of advice and views) of FOISA applies to some of the information you have requested. This is because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views and provision of advice. This exemption recognises the need for officials to have a private space in which to provide free and frank advice to other officials. Disclosing the content of free and frank provision of advice or exchange of views in relation to an investigation would substantially inhibit the provision of such advice, or the exchange of such views, in the future.

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 officials a private space within which toexplore and refine the process and procedure by which investigations are conducted. This private thinking space is essential to enable all information and options to be properly considered. Disclosureis likely to undermine the quality of this process, which would not be in the public interest.

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.

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