Minister complaints from past five financial years: FOI release

Information requested

Confirm how many complaints have been made about current or former Scottish Government ministers in each of the last five full financial years, and in the 2022/23 financial year to date. Please also confirm how many of the complaints have been investigated and how many of the complaints have been upheld.

Response

1) In relation to the first part of your request, I can confirm for the requested financial years:
2018/19 two complaints were investigated
2019/20 no information is held
2020/21 no information is held
2021/22 One complaint was investigated
2022/23 No information is held
Some of the information you have requested is already available - see Parliamentary Question SSW-
18396 published on Thursday 20 September 2018.

2) In relation to the second part of your request, 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 an exemption under section 35(1)(g) (prejudice to public authority in the exercise of its functions), 38(1)(b) (personal information) and section 36(2) (actionable breach of confidence) apply to that information.

An exemption under section 35(1 )(g) as read with section 35(2)(b) of FOISA applies. 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 outcome would cause substantial prejudice to the Scottish Government's ability to process 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). Therefore, 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 the process if they apprehend that information provided by them in the context of the process is likely to be disclosed outwith the process. This would substantially prejudice the Scottish Government's ability to process 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 deals with such a complaint. 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 outcome, will be made public. 

An exemption under section 38(1)(b) of FOISA applies to some of the information that you have requested. Section 38(1)(b) applies because it is personal data of a third party, for example names of individuals or other personal data 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. 

An exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some of the information requested because it was obtained by witnesses during the process or related to interviews with witnesses. Disclosure would constitute an actionable breach of confidence. This is because the information is confidential, was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality, and unauthorised disclosure would be to the detriment of the person who provided the information. 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.