Publication - FOI/EIR release

Correspondence relating to Scottish Information Commissioner appeal Decision Notice 083/2021: FOI release

Published: 28 October 2021
Topic: Constitution and democracy, Public sector
FOI reference: FOI/202100223873
Date received: 16 July 2021
Date responded: 14 September 2021

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

Information requested

1. Any and all internal and external correspondence including emails, letters, WhatsApp messages, Signal messages, text messages relating to government business from officials, ministers, and special advisers and any other interested party relating to the consideration of the Scottish Information Commissioner appeal which resulted in decision 083/2021 between December 1, 2020 and 27 May, 2021.

2. Any and all internal and external correspondence including emails, letters, WhatsApp messages, Signal messages, text messages relating to government business from officials, ministers, and special advisers and any other interested party relating to the consideration of how to respond to the SIC decision notice 083/2021 post-May 27.

Response

I apologise for the delay in responding to your request, which has arisen as a result of the volume of information falling within scope, together with the highly sensitive and confidential nature of the information requested in 202000077818 and 202000094934. We have been particularly concerned to ensure that disclosure would not breach the protective order put in place by the Court of Session. You asked for:

I attach a copy of some of the information you requested.

Some of the information you have requested is available from the Scotsman website, https://www.scotsman.com/news/politics/scottish-government-unlawfully-claimed-alex-salmond-harassment-report-did-not-exist-3253224, and from the Decision Notice 083/2021 published by the Scottish Information Commissioner at Decision 083/2021 (itspublicknowledge.info).

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 websites 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 some of the information you have requested because exemptions under sections 26(c) (prohibitions on disclosure: contempt of court), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views), 30(c) (substantial prejudice to effective conduct of public affairs), 35(1)(g) as read with 35(2)(b) (law enforcement), 36(1) (confidentiality of communications), 38(1)(a) (personal information of requester) and 38(1)(b) (personal information) of FOISA apply to some the information you have requested. The reasons why these exemptions apply are set out below.

Section 26(c) - prohibitions on disclosure: contempt of court

An exemption under section 26(c) of FOISA (prohibitions on disclosure: contempt of court) applies to the Decision Report because disclosure would be incompatible with the agreement intended to settle the judicial review proceedings, to which the court gave its authority on 8 January 2019. As part of that agreement, the Decision Report was declared to be unlawful and it was reduced. The Scottish Ministers gave an undertaking to the court as part of that agreement, and we consider that the aim of the undertaking would be completely undermined were the Decision Report to be disclosed. Breach of an undertaking is punishable as a contempt of court, and so we have concluded that the exemption applies.

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 30(b)(i) and 30(b)(ii) – free and frank provision of advice and free and frank exchange of views for the purposes of deliberation

Exemptions under section 30(b)(i) and 30(b)(ii) of FOISA (free and frank provision of advice; free and frank exchange of views) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers and other officials before the Scottish Government reaches a settled public view on the approach to be adopted in responding to FOI requests. Disclosing the content of free and frank advice on the approach to responding to complex and sensitive FOI requests will substantially inhibit the provision of such advice in the future, particularly because these discussions contain frank appraisals of the alternative approaches which might be adopted and their prospects of success.

These exemptions are 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 a private space within which officials can provide free and frank advice to Ministers and other officials, as part of the process of exploring and refining the Government’s position on its response to requests of this nature. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Section 30(c) – substantial prejudice to the effective conduct of public affairs

An exemption under section 30(c) of FOISA (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 on how to respond to sensitive and complex FOI requests 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 respond effectively to FOI requests.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 35(1)(g) - the exercise by any public authority or Scottish public authority of its functions

An exemption under section 35(1)(g) as read with section 35(2)(b) of FOISA applies to the Decision Report. This exemption applies because disclosure 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. We have concluded that disclosure of the Decision Report would cause substantial prejudice to the Scottish Government’s ability to investigate future complaints of improper conduct because it is likely to deter other complainers from coming forward in future. We consider that those who make such complaints have a reasonable expectation of confidentiality, and that this is particularly important where there is an imbalance of power (as when a civil servant makes a complaint about a current or former Minister). The negative effects of steps which reduce the confidentiality available to complainers were canvassed by Ms A and Ms B in the evidence that they gave to the Scottish Parliament’s Committee on the Scottish Government Handling of Harassment Complaints, as reported here. Taken together, we consider that if future complainers reasonably apprehend that information about their complaints of improper conduct against current or former Ministers will be disclosed publicly, then they would be substantially inhibited from making complaints. We also consider that persons complained about are less likely to cooperate voluntarily with investigations if they apprehend that information provided by them in the context of the investigation is likely to be disclosed outwith the investigation process. This would substantially prejudice the Scottish Government’s ability to investigate such complaints, and so would constitute substantial prejudice for the purposes of the exemption.

This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of the 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 general public interest in disclosure as part of open and transparent government, and to inform public debate. We also recognise that there is a public interest in understanding how the Scottish Government dealt with these complaints, and that this is heightened by the outcome of the subsequent judicial review proceedings in which the Decision Report was reduced. However, we consider that there is a greater public interest in ensuring that future complainers are not deterred from making complaints of improper conduct, and in respecting the confidentiality which they reasonably expect as part of that process. The function of ascertaining whether a person is responsible for conduct which is improper would be frustrated in its entirety if complainers are unwilling to make such complaints because they reasonably apprehend that information about the complaints, including the ultimate Decision Report, will be made public.

Section 36(1) – legal advice

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some 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.

Section 38(1)(a) – applicant has asked for their own personal data

An exemption under section 38(1)(a) of FOISA (personal information) applies to some of the information requested because it is personal information of which you are the data subject, and so it is subject to the General Data Protection Regulation and 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 38(1)(b) – applicant has asked for personal data of a third party

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, e.g. the names of individuals below the grade of Senior Civil Servant, 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.

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.