Mairi McAllan's WhatsApp messages during the Covid-19 pandemic: FOI Review

Information requested

Original request: 202400435281

You asked for Mairi McAllan's WhatsApp messages from the Covid 19 pandemic.

Response

I have reviewed the handling of FOI case 202400435281 and our response that the Scottish Government does not have the information you asked for. I have concluded that a full and proper search was not carried out. This included a failure to ask Ms McAllan directly for any messages she may hold.

As part of this review Ms McAllan was asked to provide any messages she held. I have reviewed the information provided by Ms McAllan. I have decided that most of this information can be released.

Please see annex A.

An exemption under section 29(1)(d) of FOISA applies to some of the information requested because it relates to the operation of any Ministerial private office. This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of the 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, to ensure private offices operate efficiently and to inform public debate. However, there is a greater public interest in allowing Ministers a private space to engage with officials working to support on a range of ministerial duties and decisions. This private space also allows for all options to be properly considered, to enable effective operation of private office.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some 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 in relation to specific portfolio matters will substantially inhibit such discussions in the future.

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 policy position on climate and marine related matters, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good policy decisions can be taken. Premature 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 policy making process, which would not be in the public interest. 

Exemptions 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.

Some of the information provided by Ms McAllan is deemed to be out of scope as it does not relate to Government business.

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 202400436608 - Information Released - Annex A

File type

PDF

File size

4.1 MB