Former Minister for Public Health, Women's Health and Sport WhatsApp messages during the COVID-19 pandemic: FOI Review

Information requested

Original request (202400395588)

I wish to make a Freedom of Information Request for MSP Maree Todds WhatsApp messages from her ministeral role during the COVID-19 pandemic.

Response

Further to our letter of 21 March 2024, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for ‘MSP Maree Todd’s WhatsApp messages from her ministerial role during the COVID-19 pandemic’. I apologise for the delay in responding which was due to the length of time taken to collect and process the data.

I have concluded that a different decision should be substituted, and that we are no longer relying on the exemption at section 37(1)(b)(i) (information lodged with an Inquiry) of the Freedom of Information (Scotland) Act 2002 (FOISA).

Therefore I am releasing some of the information requested, and a copy is enclosed. However, 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 the following sections of FOISA applies to that information. The reason why each exemption applies is also explained below.

Section 29(1)(b) – Ministerial Communications
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 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 is 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 so that Ministers can reach a decision 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. 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(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.

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) – confidentiality in legal proceedings

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.

FOI 202400405863 - Information released - Annex

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