Information pertaining to WhatsApp messages: FOI Appeal

Information requested

Request 1:

I am writing to you to request the following information.

For the month of August 2021, any WhatsApp messages or text messages sent or received by any government minister on government business.

Request 2:

I am writing to you to request the following information.

For the entire month of March, 2021 (inclusive), any WhatsApp or text messages sent or received by any cabinet secretary of the time on government business.

Response

Following your correspondence to the Scottish Information Commissioner relating to an appeal on the handling of your reviews 202100255912 and 202100255908 regarding obtaining WhatsApp and text messages relating to Government business for March 2021 and August 2021.  I have reconsidered our responses and am issuing the following revised review response.

I have concluded that a new decision should be substituted, and we are no longer relying on section 17 (information not held) of the Freedom of Information (Scotland) Act 2002 (“FOISA”).

While we aim to provide information wherever possible, in this case exemptions apply to some of the information. It is worth noting that following the extensive range of evidence being gathered for the Covid Inquires this enabled current and former Ministers to identify WhatsApp and text messages that were thought not to be in scope previously, or for them to access messages previously deleted via other individuals who hold messages.

Please note that to date we did not receive a response from one former Minister, Roseanna Cunningham.

The following exemptions apply to some of the information in the attached document:

Section 26 – Prohibitions on Disclosure

Section 28(1) – Relations within the UK

Section 29(1)(b) – Ministerial Communications

Section 30(a) – Convention of collective responsibility of Scottish Ministers

Section 30(b)(ii) – Free and Frank Exchange of views

Section 36(1) – Confidentiality in legal proceedings

Section 38(1)(b) – Personal information

The reasons why exemptions apply are set out below.

Section 26 – Prohibitions on Disclosure

This information is exempt under FOISA s26(a) (disclosure prohibited by or under an enactment). The information is exempt from disclosure because it is subject to a restriction order made by the UK Covid-19 Public Inquiry. 

Further information regarding the restriction order is available here:  2023-02-23 Module 2A General Restriction Order (covid19.public-inquiry.uk). This restriction order was made by the Inquiry Chair using powers under section 19 of the Inquiries Act 2005 and was published by the Inquiry on 23 February 2024.

Section 28(1) – Relations within the UK

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested.  This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government.

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 maintaining good relations between the Scottish Government and the UK Government.  There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

Section 29(1)(b) – Ministerial communications

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

Section 30(a) – convention of collective responsibility of Scottish Ministers

An exemption under section 30(a) of FOISA (convention of collective responsibility of Scottish Ministers) applies to some of the information requested.  This exemption applies because disclosure would, or would be likely to, prejudice substantially the convention of the collective responsibility of Scottish Ministers for the Scottish Government’s decision on Cabinet business on external affairs.  Government in Scotland, as in the rest of the UK, has long worked under the convention that Ministers are collectively responsible for decisions and their delivery.  Collective responsibility requires collective discretion, and ensures that Ministers can express their views frankly in internal discussion of an issue while maintaining a united front once decisions have been reached.  Disclosing communications between individual Ministers and/or Cabinet papers which record their views would prejudice substantially the maintenance of the convention.

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 maintaining collective responsibility for the Scottish Government’s decision on various policy related decisions.  Disclosure of these internal discussions between Ministers would be likely to have the effect of undermining the Government’s position on external affairs issues, and thus the effectiveness of the decision, which would not be in the public interest.

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

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) 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 and explore options before the Scottish Government reaches a settled public view.  Disclosing the content of free and frank discussions on dealing with a number of different issues, including the Covid-19 pandemic, will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive or controversial issue such as Covid-19 pandemic, and budget discussions.

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 and officials a private space within which to explore and refine the Government’s position on a number of topics, such as those listed above.  This private thinking space is essential to enable all options to be properly considered, 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 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)(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, for example names and contact details for individuals, 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.

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