Publication - FOI/EIR release

Deputy First Ministers meetings with Lady Poole: FOI release

Published: 9 August 2023
Directorate: Safer Communities Directorate
Part of: Public sector
FOI reference: FOI/202300338420
Date received: 17 January 2023
Date responded: 6 June 2023

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

Information requested

All internal and external correspondence within and sent or received by the Scottish Government including attached documents, meeting handouts, memos, briefings to ministers, attendee lists, location of meeting, notes, minutes, or OneNote memos, linked to the following meetings:

John Swinney's meetings with Lady Poole on September 21, 2022, twice on September 30, 2022, and on October 27, 2022.

Response

I address your request below, providing some of the information you have requested, which is enclosed at Annex A. I have also enclosed the briefing papers referred to in documents 2, 3, 6 and 15 as Annex B, C, D, and E respectively. Please note that some information related to the meetings between the Deputy First Minister and Lady Poole on 21 and 30 September has previously been released. For that reason, under FOISA section 25(1), explained in more detail below, this is exempted from inclusion in this response. This information can be accessed on the Scottish Government website using the following links:

Some of the information you have requested is exempt from disclosure because exemptions under section 30(c) (effective conduct of public affairs), sections 30(b)(i) and 30(b)(ii) (free and frank provision of advice or exchange of views), section 36(1) (legal advice), and section 38(1)(b) (personal information) of FOISA apply to that information. The reasons why these exemptions apply are explained in the following paragraphs.

Exemptions apply, not subject to the public interest test

Section 25(1) – information otherwise accessible
An exemption under section 25(1) of FOISA (Information otherwise accessible) applies to some of the information requested as it can be reasonably obtained without asking for it under FOISA. 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. This information comprises: internal and external correspondence, notes and minutes for the meetings between the Deputy First Minister and Lady Poole on 21 September and twice on 30 September 2022. A specific exemption under section 25(1) has also been applied to documents 5 and 7 of this response, as the minute for the meeting of 21 September 2022 discussed in these documents has been published on the Scottish Government website. Links to these documents are enclosed above.

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 as 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.

Exemptions apply, subject to the public interest test

Sections 30(b)(i) and 30(b)(ii) – free and frank provision of advice or exchange of views
An exemption under section 30(b) of FOISA (free and frank provision of advice or exchange of views) applies to some of the information requested. There is a significant probability that disclosing this information would, or would be likely to, restrain, decrease or suppress the freedom with which opinions or options are expressed in relation to the effective operation of the Scottish COVID-19 Inquiry. This would cause substantial inhibition to the provision of advice or on the exchange of views, and may also inhibit the effective operation of the Inquiry and independence of its Chair in their implementation of their remit by disclosing information on internal decisions about how the Inquiry is approaching or intends to approach its work.

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. However, there is a greater public interest in protecting the independent operation of the Scottish COVID-19 Inquiry and the process of carrying out its work, and in ensuring that the Inquiry is able to carry out its work effectively and without inhibition or constraint.

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 some of the information requested. Disclosing this information would substantially prejudice the independent work of the Scottish COVID-19 Inquiry by revealing information on matters relating to the operation and approach of the Inquiry. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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.

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.