Former Permanent Secretary's WhatsApp messages during Covid-19 pandemic: FOI release

Information requested

Leslie Evans Covid 19 WhatsApp messages.

Response

I have taken the period of your request to apply from 21 January 2020 when the World Health Organisation published its ‘Novel Coronavirus (2019-nCoV) Situation Report, up until 30 April 2022 when the then remaining Covid-19 restrictions were lifted in Scotland.

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 they are out of scope, or carry exemptions under Sections 25 (1) Information otherwise accessible, Section 28 (1) relations within the United Kingdom, Section 30(b)(i) (free and frank provision of advice), Section 30(b)(ii) (free and frank exchange of views), Section 30(c) (otherwise prejudice effective conduct of public affairs), and Section 38(1)(b) (personal information) of FOISA apply to that information. The reasons why those exemptions apply are explained below.

Out of scope

Redactions have been applied to material outwith the scope of this request.

Section 25 (1) Information otherwise accessible

Section 25 of the Freedom of Information (Scotland) Act 2002 (FOISA) exempts information from disclosure where the requester can reasonably obtain the information without asking for it under FOISA. It has a different focus from most other exemptions. It is not about withholding information from the public; it recognises that where information is already available, there is no need to provide an alternative right of access to it through FOISA.

In this case, we have identified that we hold four WhatsApp exchanges that contain Leslie Evans. Three of those exchanges have been provided to you as part of previous FoI requests of a similar nature. Those requests being for Lesley Fraser’s messages (case ref: 202400427870), Ken Thomson’s messages (case ref: 202400425744), and Caroline Lamb’s messages (case ref: 202400422230).

With these exchanges available to you, we will not repeat submission of them to you in this case.

Section 28 (1) relations within the United Kingdom

Section 28 of the Freedom of Information (Scotland) Act 2002 (FOISA) exempts information from disclosure where disclosure would, or would be likely to, prejudice substantially relations between administrations in the UK (e.g. between Westminster and Holyrood).

The exemption in section 28(1) is subject to the public interest test. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

We have found this to be the case, and that disclosure of this information may strain government relations, as such we are upholding this exemption.

Section 30(b)(i) and section 30(b)(ii) free and frank provision of advice and free and frank exchange of views for the purposes of deliberation

An exemption under Section 30(b)(i)(free and frank provision of advice) and section 30(b)(ii) (free and frank exchange of views) of FOISA applies to some of the information requested because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation. These exemptions recognise the need for officials to have a private space within which to provide free and frank advice and exchange of views to other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice and the free and frank exchange of views for the purposes of deliberation regarding the Scottish Government’s response to the pandemic, which are currently under the independent investigation by the Scottish and UK Covid-19 Inquiries, will substantially inhibit the provision of such advice in the future, particularly because the Scottish and UK Covid-19 Inquiries’ investigations are still ongoing and the release of matters currently under investigation by those inquiries is likely to cause harm to the ability of either inquiry to conduct its investigations as effectively and thoroughly as required under its terms of reference. For these reasons, I have concluded that the exemption applies.

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 a private space within which officials can provide full and frank advice to other officials as part of the process of exploring and refining the Government’s policy in response to the pandemic. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the Scottish Government’s policy and decision making, which would not be in the public interest.

Section 30(c) - prejudice 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. As the Scottish and UK Covid-19 Inquiries are in the midst of their investigations and currently scrutinising Ms Evan’s WhatsApp messages, disclosure of some of this information would significantly harm and could adversely affect the Inquiries’ ability to carry out their specific, focused statutory duties, under the Inquiries Act 2005, in relation to public Inquiries.

This exemption applies because disclosing the content of discussions between officials about the internal reorganisation of the Civil Service and reprioritisation of projects to meet the needs of an urgent crisis (in this case the pandemic response) will substantially inhibit those discussions during future crisis. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 protecting the space where officials discuss how the Civil Service can adapt its processes and structures to meet the needs of responding to a significant crisis, particularly while this information is under the independent investigation of the Scottish and UK Covid-19 Inquiries.

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA (personal data relating to third party) also applies to some of the information contained within the emails because it is the personal data of a third party, i.e. the names of individuals, telephone numbers. Disclosing this information 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.

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FOI 202400430952 - Information released - Annex 1

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