- 10 Jun 2021
Date received: 8 Apr 2021
Date responded: 3 Jun 2021
“Thanks for you work on my behalf. I apologise for my carelessness in this foi. In fact Clegg says that the Record (so not just Clegg) made requests (so not formal foi’s necessarily). Can I ask whether there were any informal requests from 31 October. Maybe you considered this, but if not, can you accept this second follow up (to 202100187052). And can you give as much detail as possible to the foi received mid June [FOI/18/02575 (https://www.gov.scot/publications/foi-18-02575/)] – the one mentioned in the SGHHC documentation. Please ask me if you are not clear.”
“Can you please give me the history of those (civil servants and politicians and others) who were dealing with FOI reference: FOI/18/02575 (https://www.gov.scot/publications/foi-18-02575/) (received June 18th 2018). Obviously, it went say to the Perm Secretary and others. I wish to know who saw it when.”
“As you see, I cut and paste a FOI [for ease of reference: FOI/18/02575] in which the SG "neither confirms nor denies" etc. My request, has the SG - either in foi or in written submissions by ministers, prior to 24 August ever received similar Fois, in particular, those FOIs that said in effect, "we can confirm that the FFM has not had complaints". Presumably this would be prior to the January 2018 complaints.
Also, what was the "chain of command" (via emails) that led to the decision on this foi and any others. To clarify, is it the case that prior to September 2018 the SG had only ever had one foi re complaints against Salmond.”
Attached is a copy of some of the information requested.
The email trail attached seeks clearance of the draft reply to FOI/18/02575 and the other FOI requests that were published on 20 September 2018. It shows to whom this was sent and copied. The ‘chain of command’ - by which we interpret to mean the usual clearance or approval process for FOIs like FOI/18/02575 and those others - would be the line management within the area that led on dealing with the FOI request. FOIs designated as ‘Sensitive’ are also submitted to the Special Advisers (SpAds) and potentially Ministers (in this case, the Deputy First Minister (DFM)). The Permanent Secretary is also likely to be copied in to such FOI requests.
You asked for “as much detail as possible to the foi received mid June”. Colleagues have already written to you regarding the identity of the requester of FOI/18/02575 ([redacted] on 4 May 2021 (FOI 202100198944) and [redacted] on 14 May 2021 (FOI 202100194662)) and I understand you have also made another request (FOI 202100194662) asking for the precise text of that request and the precise time it was received).
We have found one FOI request (FOI/17/02680) received prior to ‘prior to 24 August’ / ‘prior to September 2018’ where we responded by saying that the Scottish Government had not received any complaints against Ministers. This was not specifically about the former First Minister, but was before January 2018. There was a further FOI request (FOI/18/01851) but this did not mention Ministers. Copies of these, with the requesters’ names redacted are enclosed. This second FOI request referred to the following Parliamentary Question: Written question and answer: S5W-18396 | Scottish Parliament Website.
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have asked for. There are no records of any ‘informal requests’ from 31 October. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.
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.
An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to a small amount of the information requested because it is legal advice and disclosure would breach 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 public or private organisation.
An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. the names and contact details of civil servants (in grades below the Senior Civil Service) and others, 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.
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.
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Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House