Correspondence pertaining to Sexual Harassment Complaints Committee between specific dates: FOI release
Information request and response under the Freedom of Information (Scotland) Act 2002
Information requested
1) Correspondence between written by civil servants on written submissions to the Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints between July 1 and August 12.
2) Correspondence written by ministers on written submissions to the Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints between July 1 and August 12.
3) Correspondence written by the First Minister on written submissions to the Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints between July 1 and August 12.
4) Any reports sent to Scottish ministers on the Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints or its inquiry since January 1 2020.
5) Any briefing notes sent to Scottish ministers, the First Minister or Permanent Secretary on Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints since January 1 2020.
Response
1) Correspondence between written by civil servants on written submissions to the Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints between July 1 and August 12.
While our aim is to provide information wherever 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 the significant volume of documents which would require to be located, retrieved and appropriately redacted.
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, and / or subject matter, 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://itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.
2) Correspondence written by ministers on written submissions to the Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints between July 1 and August 12.
As correspondence written by civil servants on behalf of Ministers would be caught by your first request, we have interpreted this part of the request as excluding correspondence written by civil servants on behalf of Ministers.
The information you requested is reproduced below.
From: Swinney J (John) <John.Swinney@gov.scot>
Sent: 16 July 2020 22:13
To: Deputy First Minister and Cabinet Secretary for Education and Skills <DFMCSE@gov.scot>
Subject: RE: IMMEDIATE: Submission on Scottish Parliament Committee on SG Handling of
Harassment Complaints
I am content for this to issue and note the points made by Lesley Fraser.
J
3) Correspondence written by the First Minister on written submissions to the Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints between July 1 and August 12.
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. This is a formal notice under section 17(1) of FOISA that we do not hold the information you have requested.
4) Any reports sent to Scottish ministers on the Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints or its inquiry since January 1 2020.
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. This is a formal notice under section 17(1) of FOISA that we do not hold the information you have requested.
5) Any briefing notes sent to Scottish ministers, the First Minister or Permanent Secretary on Scottish Parliament Committee on the Scottish Government Handling of Sexual Harassment Complaints since January 1 2020.
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, 30(b) (free and frank exchange of advice and views), 30(c) (substantial prejudice to effective conduct of public affairs), 36(1) (legal privilege), and 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained below.
The information you request is enclosed with this response.
Section 30(b)(i) and (ii) (free and frank exchange of advice and views)
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 to explore 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 consider . Disclosure is likely to undermine the quality of this process, which would not be in the public interest.
Section 30(c) (substantial prejudice to effective conduct of public affairs)
An exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice, 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.
Section 36(1) (legal privilege)
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 into account all of 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 38(1)(b) personal information
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.
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Contact
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