Correspondence regarding Covid-19 bereaved families: FOI release

Information requested

1. All correspondence, emails, record of phone calls, notes, including text messages received either by John Swinney or Humza Yousaf from Aamer Anwar seeking or making arrangements to meet Covid19 Bereaved Families for Justice Group or in relation to a request for a Public Inquiry or the date of a Public Inquiry into Covid deaths.

2. A copy of the agenda, notes or such other records of the meeting on 17 August and to include any emails or correspondence or text messages sent or received by John Swinney or Humza Yousa ffollowing the said meeting regarding the said meeting.

3. Copies of all correspondence sent by the Scottish Government, or the Deputy First Minister or Humza Yousaf to Aamer Anwar in respect of arranging to meet on 17 August 2021 or any other date in respect of the intended meeting.

4. Copies of all correspondence from the Scottish Government to Aamer Anwar or to others inviting any party to contribute to the Terms of Reference of any Public Inquiry to be held in relation to the Covid deaths discussed at the meeting on 17 August 2021.

5. Insofar as question 3 above is concerned, a list of all parties invited to contribute to the Terms of Reference and copies of correspondence sent to any person or group invited to contribute to the said terms of reference of any public inquiry to be held.

6. Copies of all correspondence, notes, text messages or other records in respect of correspondence sent to the Cabinet Secretary, Humza Yousaf on 25 May and 11 June 2021 from PBW Law, Solicitors seeking a meeting with him and the decision that the Cabinet Secretary was too busy to meet the representatives of PBW Law.

7. All correspondence, notes, records or other communications between the Deputy First Minister, John Swinney and Cabinet Secretary for Health and Social Care, Humza Yousaf advising who they should meet with.

Response

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. names and contact details of individuals, and disclosing 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 has been applied where necessary throughout the response. 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.

1. Attached is a copy of most of the information requested at Annex A in the format you asked for, except for some personal data of third parties as discussed above.

2. Attached is a copy of most of the information requested at Annex B in the format you asked for, except for some personal data of third parties as discussed above. Please note there was no agenda for the meeting. Annex B includes notes taken by the Scottish Government at the meeting, and clearance of these notes by the Deputy First Minister and Cabinet Secretary for Health and Social Care.

3. Attachd is a copy of most of the information requested at Annex C in the format you asked for, except for some personal data of third parties as discussed above.

4. Attached is a copy of most of the information requested at Annex D, except for some personal data of third parties as discussed above.

However, it should be noted that the Scottish Government is currently developing Terms of Reference for the Scottish COVID-19 public inquiry, and have not sought input from third parties specifically on the wording of it. As you will be aware, on 24 August 2021 the Scottish Government announced that an independent public inquiry into the handling of the COVID-19 pandemic in Scotland will be established this year. The Scottish Government invited views from organisations and members of the public on a draft COVID-19 Inquiry Aims and Principles paper, which is intended to help shape the terms ofreference for the inquiry. 

Scottish Government directorates were asked to write directly to external stakeholders, where appropriate, highlighting the opportunity to give feedback. We also highlighted this to known stakeholders via email and by press and social media work flagging up the COVID-19 public inquiry Aims and Principles Paper. Meetings were also offered to some stakeholders.

We appreciate your contribution to this work and would welcome on-going engagement with you on these matters.

5. 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 across the Scottish Government. As described above, directorates across the Scottish Government were asked to write directly to external stakeholders, where appropriate, highlighting the opportunity to give feedback on the draft COVID-19 Inquiry Aims and Principles paper, which is intended to help shape the terms of reference for the inquiry. 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 specify the sector or 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.

As highlighted above, it should be noted that the Scottish Government is currently developing Terms of Reference for the Scottish COVID-19 public inquiry, and have not sought input from third parties specifically on the wording of it. On 24 August 2021, the Scottish Government announced that an independent public inquiry into the handling of the COVID-19 pandemic in Scotland will be established this year. The Scottish Government invited views from organisations and members of the public on a draft COVID-19 Inquiry Aims and Principles paper, which is intended to help shape the terms of reference for the inquiry. We appreciate your contribution to this work and would welcome on-going engagement with you on these matters.

6. Provided is some of the information you have requested at Annex E. I wish to highlight a drafting error within Annex E (Extracts from 9 September briefing), where you are twice referred to as Prof Wilson. We apologise for this unfortunate error in drafting.

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. This includes correspondence that has already been provided you in relation to this part of your request.

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 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 30(b)(ii) of FOISA (free and frank exchange of views) also applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss issues pertaining to the Scottish Government’s business. Disclosing the content of such free and frank discussions will substantially inhibit such discussions 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 discuss issues and to explore the Scottish Government’s position. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

7. Attached is a copy of some of the information you requested at Annex F. However, an exemption under section 29(1)(b) of FOISA (Ministerial Communications) applies to some of the information requested because it relates to communications between Scottish Ministers.

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 Ministers a private space within which issues can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the decision making process.

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FOI202100247071 - Annex A - F

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