Information

Scottish National Investment Bank CEO resignation correspondence: FOI release

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


Information requested

1. All correspondence between Scottish Government ministers, special advisers and civil servants relating to the resignation of Eilidh Mactaggart from the Scottish National Investment Bank between January 25 2022 and March 16 2022.

2. All correspondence between Scottish Government civil servants, special advisers and ministers and Eilidh Mactaggart, bank chair Willie Watt and any members of the bank's board on the same topic during the same time frame.

For clarity correspondence should include emails, letters, texts and other forms of electronic instant messages, briefing notes/briefing papers meeting minutes and phone calls. While the content of calls will be difficult - if not impossible - to gather, simply stating that a call took place would be sufficient.

Response

I attach a copy of most of the information you requested in Annex A and B.

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

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to a small amount 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. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position. Disclosing the content of free and frank briefing material on these matters will substantially inhibit such briefing in the future, particularly as such matters were still ongoing at the time and final decisions had yet to be taken or positions agreed.

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 and views to Ministers in briefings. It is clearly in the public interest that Ministers can properly make decisions, potentially provide sound information to Parliament (to which they are accountable). They need full and candid advice from officials to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, 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 a small amount of the information requested. Disclosing this information would substantially prejudice the Scottish Government and/or the Bank's ability to conduct aspects of its operations. 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 public bodies. However, there is a greater public interest in protecting the Bank’s and Scottish Governments ability to conduct aspects of its business effectively.

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, i.e. the names and/or contact details of officials below SCS level and disclosing this 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.

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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