Former Director General of Economy WhatsApp messages during Covid-19 pandemic: FOI release

Information requested

I wish to make a Freedom of Information Request for Liz Ditchburn's Covid 19 WhatsApp messages.

Response

We 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, as exemptions under Section 25 (1) (otherwise accessible), Section 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), and Section 38(1)(b) (personal information) of FOISA apply to that information.

Section 25(1) (otherwise accessible)
An exemption under section 25(1) (otherwise accessible) of FOISA applies to some of the information requested. Two WhatsApp exchanges containing messages to/from Liz Ditchburn 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 – Annex 2) and Ken Thomson’s messages (case ref: 202400425744 – Annex 5). Under Section 25(1) we do not have to give you information which is already reasonably accessible to you.

Section 30(b)(ii) free and frank exchange of views for the purposes of deliberation
An exemption under Section 30(b)(ii)(free and frank exchange of views for the purposes of deliberation) of FOISA applies to some of the information requested 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 officials to have a private space within which to provide free and frank exchange of views to other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank exchange of views regarding the Scottish Government’s response to the pandemic, which is currently under the independent investigation by the Scottish and UK Covid-19 Inquiries, will substantially inhibit the provision of such an exchange 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, we 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 38(1)(b) (personal information)
An exemption under section 38(1)(b) of FOISA (personal information) 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 and so on. 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.

About FOI

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 202400436411 - Information Released - Annex

File type

PDF

File size

68.7 kB