Deputy Director for Population Health Resilience and Protection WhatsApp messages during Covid-19 pandemic: FOI release

Information requested

Daniel Kleinberg's Covid-19 WhatsApp messages.

Response

We have carried out searches for information that falls in scope of your request.

I enclose a copy of some of the information you requested.

Attached to this response is “Material for release - CIIG - UKI21WHA00032 - WhatsApp - C19 secretariat (1)”

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 carry exemptions under Sections 25 (1) Information otherwise accessible, 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.

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 two WhatsApp exchanges that contain Daniel Kleinberg. One of those exchanges has been provided to you as part of previous FoI request of a similar nature.

FOI Number	FOI Title	Relevant Information for FOI 202400436346 (Daniel Kleinberg)
202400422235	Deputy Chief Medical Officer, Nicola Steedman: WhatsApp messages during the COVID-19 pandemic	CIIG - UKI21WHA00293 - WhatsApp – SAGE

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.

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.

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 to adapt and respond to meet
the needs of responding to a significant crisis.

Section 38(1)(b) - personal data relating to a third party
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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The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202400436346 - Information Released - Annex (CIIG - UKI21WHA00032 - WhatsApp - C19 secretariat (1))

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