Information relating to Michael McElhinney's journal: FOI release

Information requested

Please could you provide the following information in regards to the diary/journal of Scottish Government civil servant Michael McElhinney which was provided to Police Scotland in February 2019 and returned to the Scottish Government on 1st May 2020:

1. Who had access to this diary/journal before February 2019?
2. Who provided this diary/journal to Police Scotland in February 2019?
3. Given that it was a diary/journal allegedly containing information on historical incidents relevant to the Police investigation why was it not provided to the Police much earlier? In late August 2018 for example?
4. When the diary/journal was returned to the Scottish Government on 1st May 2020 who had access to it?
5. Where is this diary/journal now?
6. How could ‘journalists’ David Clegg and Kieran Andrews have obtained this diary/journal from the Scottish Government as they mention in their book BREAK-UP?
7. Can an ordinary member of the general public obtain access to the contents of the diary either with or without suitable redactions?
8. Has Michael McElhinney kept a diary/journal for every year he has been in the Scottish Government?
9. If Michael McElhinney kept a diary/journal for every year then why is only one diary/journal ever referenced?
10. Was the diary/journal of Michael McElhinney created solely to cover alleged incidents involving staff?

Response

In relation to the first part of your request, the answer to your question is that the author of the notebook, Scottish Government HR and Police Scotland had access to the notebook before February 2019. Outwith FOISA, it might help if I clarify that what is referred to as a ‘diary/journal’ is more accurately described as a notebook containing work notes.

In relation to the second part of your request, the answer to your question is that the notebook was handed to the police by Scottish Government HR as part of the criminal investigation. Outwith FOISA, please note that this took place on 15 November 2018 and not in February 2019 as specified in your request.

In relation to the third part of your request, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. Having conducted appropriate and proportionate searches, the Scottish Government holds no recorded information within the scope of your request.

As noted above, the notebook was provided to Police Scotland at their request on 15 November 2018.

In relation to the fourth part of your request, the answer to your question is that the notebook was returned by Police Scotland to the author of the notebook on 1st May 2020.

In relation to the fifth part of your request, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. This is because, although photocopies of some pages were retained, the notebook itself is no longer held by Scottish Government.

In relation to the sixth part of your request, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. Having conducted appropriate and proportionate searches, the Scottish Government holds no recorded information within the scope of your request.

In relation to the seventh part of your request, I have interpreted this part of your request as a request for information in the notebook referred to.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. This is because, as noted above, the notebook is no longer held by the Scottish Government.

In relation to photocopies of pages that are held by Scottish Government, in this instance we are unable to provide the information that you have requested because an exemption under section 26(c) of FOISA (prohibitions on disclosure: contempt of court) applies to that information.

The exemption applies because disclosure of any of the information you have requested in this part of your request would be likely to lead to the identification of individuals and so would breach orders made under the Contempt of Court Act 1981. Such a disclosure would therefore be punishable as a contempt of court, and accordingly the information requested is exempt from disclosure by virtue of section 26(c) of 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.

I have noted that you refer to the possibility of suitable redactions being made. However, I have concluded that it would not be possible to redact the information requested in such a way as to ensure that there would be no realistic prospect of identifying a complainer. In determining whether there is a realistic prospect of identification, account may be taken of information already in the public domain.
Given this information, I consider that there is a realistic prospect that third parties could seek to combine the information that you have requested with other readily accessible information and thereby identify individuals.

In relation to the eighth part of your request, the answer to your question is that MM regularly keeps a notebook for work notes. Outwith FOISA, it may help if I clarify that this is common practice across Scottish Government.

In relation to the ninth part of your request, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. Having conducted appropriate and proportionate searches, the Scottish Government holds no recorded information within the scope of your request. As noted above, Scottish Government provided the notebook to Police Scotland at their request.

In relation to the tenth part of your request, the answer to your question is no.

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