Information regarding complaint made by Alex Salmond: FOI review

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


Information requested

I previously sent an FOI regarding an allegation that the name of a complainer had been revealed to Mr Geoff Aberdein by a senior Scottish Government official. A complaint had been made about this by Mr Alex Salmond, and I asked a series of questions regarding this.

It is only recently that I have been made aware through a BBC article that and I quote directly from the Scottish Government that the complaint has been "investigated fully and no evidence was found to support the allegations of a leak from the Scottish government". For fullness, this quote can be found at: https://www.bbc.co.uk/news/uk-scotland-scotland-politics-58705456. As a result I ask:

1 - Who investigated this complaint, was it the permanent secretary, someone else within the Scottish Government or was this investigated by someone outside of the Scottish Government, i.e. a third party?

2 - I request the disclosure of the report regarding this complaint (if there is an investigating report and a decision report then I request them both, as well as other reports if they exist).

3 - Did the following individuals provide evidence to this investigation: Mr Geoff Aberdein, Mr Alex Salmond, Mr Duncan Hamilton, Mr Kevin Pringle, Ms/Mrs Lorraine Kay, Ms Nicola Sturgeon and Ms/Mrs Elizabeth Lloyd? If so I request their evidence.

4 - Who decided that the complaint was unfounded and lacked evidence, i.e. who was the deciding officer?

5 - Has Mr Alex Salmond appealed this decision (if such an appeal is possible)?

6 - Given how important this complaint was (i.e. the possible revealing of a complainer, which constitutes a clear breach of trust and data protection laws) as well as the public knowledge of this complain as well as how much this issue has been discussed in the public eye (i.e. at a Scottish parliament committee), why was a statement not released by the Scottish Government regarding the decision of this complaint? (My apologies if this did happen).

7 - I would also ask how can the Scottish Government claim there is "no evidence" that a leak did not occur? From written evidence given to the Scottish Parliament (found at https://archive2021.parliament.scot/parliamentarybusiness/currentcommittees/115516.aspx), three individuals (Pringle, Hamilton and Kay) stated that Mr Geoff Aberdein had told them on the same day that the alleged leak occurred, that the name of a complainer was given to him? How can this statement of "no evidence" be reconciled with the testimony given by Pringle, Hamilton and Kay?

8 - Did the investigators ask the individuals named in part 3 for evidence? If so who, and if not who and why not?

Response

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.

I apologise for the delay in responding. There were a number of reasons for the delay including

  • The complexity of the factual circumstances surrounding this request
  • The need to take particular care to ensure that none of the information to be disclosed would contravene any court orders, particularly the order made by the Lord Justice Clerk on 10 March 2020 preventing the publication of the names and identity and any information likely to disclose the identity of the complainers in HM Advocate v Salmond
  • The need to appoint a new case handler partway through the handling of the case, as the original case handler took up a new post elsewhere in the Scottish Government

I can now provide our response to your original request. Our response is set out in bold italics immediately after each of your questions.

1. I can confirm that Colin Cook (the Deputy Senior Information Risk Owner) considered the data protection aspects of the correspondence, with the senior oversight for the complaint as a whole, provided by Katrina Williams, who was, at that time Director General of External Affairs.

2. Attached is a copy of some of the information you requested, It is set out in Annex A.

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 section 26(c) (prohibitions on disclosure: contempt of court), section 30(b)(i) (free and frank provision of advice) and section 38(1)(b) (personal information) of FOISA apply to that information. The reasons for which these exemptions apply are as follows:

An exemption under section 26(c) of FOISA (prohibition on disclosure: contempt of court) applies to some of the information requested because the information would be likely to disclose the identity of the complainers in the case of HM Advocate v Alexander Elliot Anderson Salmond as such complainers in those proceedings, contrary to the order made by Lady Dorrian, Lord Justice Clerk on 10 March 2020 and subsequently varied on 11 February 2021. A contravention of that order would be punishable as a contempt of court. 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.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This is because it is likely that disclosure would likely inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to other officials before the Scottish Government reaches a settled view. Disclosing the content of free and frank advice on personnel and legal aspects will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive and controversial issue.

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 a private space within which officials can provide free and frank advice to other officials, as part of the process of exploring and refining the Government’s position. 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, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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, for example names and personal information of staff in grades below the Senior Civil Service 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.

3. The answer to your question is no. However, outwith FOISA it may be helpful if I explain that the position of the persons you have named had already been formally recorded and taken into account as part of the investigation.

4. While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information needed to answer this question. The Scottish Government does not have this information because its formal complaints procedure was not applied to this correspondence and as such there was no ‘Deciding Officer’.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

5. The answer to your question is no. Outwith FOISA, as we explained in response to Question 4, the formal complaints procedure was not applied to this correspondence and there is no applicable specific appeal process.

6. While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. The Scottish Government does not have this information because it appears that you are seeking a view or opinion as to why a particular course of action was or was not adopted. As the Scottish Information Commissioner’s Tips for Requesters explains, it is unlikely that authorities will hold recorded information about opinions or views on particular issues.

This is a formal notice under section 17(1) FOISA that the Scottish Government does not have the information that you have requested.

7. While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. The Scottish Government does not have this information because it appears that you are seeking a view or opinion on certain matters. As the Scottish Information Commissioner’s Tips for Requesters explains, it is unlikely that authorities will hold recorded information about opinions or views on particular issues.

This is a formal notice under section 17(1) FOISA that the Scottish Government does not have the information that you have requested

8. Please see our response to your point 3 (above).

​​​​​​​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.

FOI202100254262 - Annex A

FOI202100254262 - Information released

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

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