Redactions in WhatsAPP/text message documents: FOI Review

Information requested

Original request 202400404999

All of the "out of scope" redactions in the document at https://www.gov.scot/publications/foi[1]202100255908/ 2. The extent of the redacted material within the 106 page document by using black block within the released document over the redacted content.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

"All of the "out of scope" redactions in the document at https://www.gov.scot/publications/foi[1]202100255908/ 2. The extent of the redacted material within the 106 page document by using black block within the released document over the redacted content."

In your review request you have indicated:

"I am writing to request an internal review as the response is unsatisfactory I do not accept that an exemption under section(s) s.38(1)(b) (personal information) of FOISA applies to the 86 "out of scope" redactions of information requested for release.

I also note the "out of scope" information requested for release was not previously classified as personal information under section s.38(1)(b) when other information was classified as falling under s.38(1)(b) within the 106 page document released."

Firstly, I would like to apologise for the delay in responding to your review request. The information released as part of FOI 202100255908 was provided for the purposes of the UK Covid Inquiry and as such the Scottish Government much ensure any release of information does not obstruct the business of the Inquiry. Unfortunately this process took longer than expected and resulted in the SG not being able to meet the 20 day deadline.

In relation to the review itself I have concluded that the original decision should be confirmed with slight modification.

The information requested in FOI 202100255908 was in relation to government related business. Any other information held by the Scottish Government that did not relate to government business, personal or otherwise, was out of scope of FOI 202100255908. This meant that we did not consider whether exemptions under FOISA may apply to the information at the point of responding to FOI 202100255908, because the information had not been asked for as part of that request, and so did not need to be considered for disclosure at that point.

You have asked for the information that was considered "out of scope", i.e non-government business related. The information is therefore within the scope of your request and has been considered for disclosure, and to work out whether any exemptions to the duty to provide information on request apply. I have concluded that the exemption at Section 38(1)(b) (personal information) was correctly applied to the majority of the information as the messages were sent by Ministers acting in a non-Ministerial capacity. Therefore, they were acting in a personal capacity and these messages are their personal data. A small portion of the information is exempt under Section 36(1) of FOISA where legal discussion has taken place and disclosure would breach legal professional privilege.

Therefore I am advising you the following exemptions apply to the information requested:

Section 36(1) – legal advice or proceedings

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal communications 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) – personal information

Section 38(1)(b) of FOISA provides that information is exempt information if it constitutes personal data and one of the three conditions set out in section 38(2A) to (3A) is satisfied. I have reviewed all of the information withheld under 38(1)(b) to 1) determine whether or not it is personal data and 2) whether any of the conditions noted above are met.

Personal data is defined in the Data Protection Act 2018 as information relating to an identified or identifiable living individual, i.e. if a person could directly or indirectly be identified from the information it is personal data. I have reviewed all of the information withheld under section 38(1)(b) (other than that now withheld under section 36(1) of FOISA, and am satisfied that this information directly or indirectly identifies living individuals so is personal data.

Accordingly, I have gone on to reconsider if the release of the personal information in this case would breach any of 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 – the first condition at 38(2)(a)(i) of FOISA.

In this case, I am satisfied that there is no lawful basis for processing the personal data requested for the purposes of responding to your request. Therefore, any such processing would contravene the principle at article 5(1)(a) of the UK GDPR stating that personal data must be processed lawfully, fairly and in a transparent manner and, therefore, that the exemption at section 38(1)(b) was applied correctly to the majority of the information withheld.

Please find the information requested attached (Annex A) in redacted form with cross reference to the original response in 202100255908.

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 202400410703 - Information released - Annex A

File type

6 page PDF

File size

192.1 kB