Queries regarding access to secretariat members email accounts: FOI Review

Information requested

Original request 202400444352

In the court of session ruling from case XA10/23, the court ruling states:

"In this connection it is notable that in their written submissions the Ministers accept that they (or their officials) could gain access to the information. They acknowledge that some of the email accounts of secretariat members had permission settings which allowed team members access and they accept that those inboxes were accessed on one occasion (para 15)."

1) Who are the team members being referenced within the Scottish Government by the court who had access to the secretariat members email accounts, and during what time period did they have access?

2) Who accessed the email inboxes on the one occasion described, when did this take place and what information did they examine upon gaining access to the email inboxes?

3) In relation to the team members (In point 1) who I have requested above (and the individual who accessed the email inboxes in point 2), were any SPADs? Which department did they work in and who was their line manager? Do they still work for the Scottish Government and in what department and who is their line manager?

4) Why did the team members and the one individual in question have access, and the one individual who accessed the email inboxes of the secretariat members?

Within the recently released legal advice following SIC case decision 193/2024, within the following passage:

"At §4.2, agents’ latest Minute states that the Commissioner may not have taken fully into account the handling arrangements as set out in Ministers’ submissions. The problem with this point is that those submissions stated that the information held on Scottish Government systems was “accessible only to the Secretariat”, which I am now advised is not strictly accurate.4 Some information was held on personal drive to which some ten other officials had access: see §3.3 of the Minute. While agents are not aware of any other official taking access, it would not be accurate to advise the court that such records were not accessible. While it is true that, as wrote, “the secretariat created and maintained separate electronic files in a restricted access area with[in] the Scottish Government electronic records management system”, at the same time some records were kept in other less secure systems."

5) What information was held on the personal drive in question?

6) What information did the "ten other officials" examine during their period of access on the personal drive in question?

7) Who are the "ten other officials" who had access to the personal drive in question and during what time period did they have access?

8) In relation to the "ten other officials" (In point 6) who I have requested above, were any SPADs? Which department did they work in and who was their line manager? Do they still work for the Scottish Government and in what department and who is their line manager?

9) Why did the “ten other officials” have access to the personal drive in question?

10) I request the minute that is being referenced in the above passage

11) Who are the agents being referenced in the above passage and what is their job titles?

Response

I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).

I apologise for the delay in providing a response to your request. The volume and complexity of requests received has meant that we have not been able to respond to your request by the due date.

In accordance with section 21(4) of FOISA, I have also reached a decision on your request. I can now provide our response to your original request (reference 202400444352).

You asked for :

In the court of session ruling from case XA10/23, the court ruling states:

"In this connection it is notable that in their written submissions the Ministers accept that they (or their officials) could gain access to the information. They acknowledge that some of the email accounts of secretariat members had permission settings which allowed team members access and they accept that those inboxes were accessed on one occasion (para 15)."

1) Who are the team members being referenced within the Scottish Government by the court who had access to the secretariat members email accounts, and during what time period did they have access?

2) Who accessed the email inboxes on the one occasion described, when did this take place and what information did they examine upon gaining access to the email inboxes?

3) In relation to the team members (In point 1) who I have requested above (and the individual who accessed the email inboxes in point 2), were any SPADs? Which department did they work in and who was their line manager? Do they still work for the Scottish Government and in what department and who is their line manager?

4) Why did the team members and the one individual in question have access, and the one individual who accessed the email inboxes of the secretariat members?

Within the recently released legal advice following SIC case decision 193/2024, within the following passage:

"At §4.2, agents’ latest Minute states that the Commissioner may not have taken fully into account the handling arrangements as set out in Ministers’ submissions. The problem with this point is that those submissions stated that the information held on Scottish Government systems was “accessible only to the Secretariat”, which I am now advised is not strictly accurate.4 Some information was held on personal drive to which some ten other officials had access: see §3.3 of the Minute. While agents are not aware of any other official taking access, it would not be accurate to advise the court that such records were not accessible. While it is true that, as wrote, “the secretariat created and maintained separate electronic files in a restricted access area with[in] the Scottish Government electronic records management system”, at the same time some records were kept in other less secure systems."

5) What information was held on the personal drive in question?

6) What information did the "ten other officials" examine during their period of access on the personal drive in question?

7) Who are the "ten other officials" who had access to the personal drive in question and during what time period did they have access?

8) In relation to the "ten other officials" (In point 6) who I have requested above, were any SPADs? Which department did they work in and who was their line manager? Do they still work for the Scottish Government and in what department and who is their line manager?

9) Why did the “ten other officials” have access to the personal drive in question?

10) I request the minute that is being referenced in the above passage

11) Who are the agents being referenced in the above passage and what is their job titles?

Response to your request

As set out in the information disclosed by Scottish Government on 26 October 2024, several Scottish Government officials had permissions to access the mailbox used by Mr Hamilton’s secretariat. The reason they were granted access was for business continuity purposes, for example if there were an urgent business requirement in the case of unexpected absence. There is no evidence that any information about the investigation was accessed by any of these individuals. The individuals who were granted access were permanent civil servants. To comply with data protection principles the names of those civil servants are not disclosed.

For clarity, the “ten other officials” referred to in the section which you quote are the same individuals referred to in the ruling. “Other” in this sense refers to individuals other than the person acting as Mr Hamilton’s secretariat.

In response to your first question, a number of individuals were granted access to the mailbox used by Mr Hamilton’s secretariat from 2019 onwards, for business continuity purposes.

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under section s.38(1)(b) (personal information) and s.36(1) (confidentiality of communications) of FOISA apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

In response to your second question, the single instance referred to in the information disclosed by the Scottish Government in October 2024 took place in March 2022 to ensure that the access settings were functioning correctly. There is no evidence that any information about the investigation was accessed.

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under section s.38(1)(b) (personal information) and s.36(1) (confidentiality of communications) of FOISA apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

In response to your third question, none of the individuals were special advisers.

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section s.38(1)(b) (personal information) applies to that information. The reasons why this exemption applies are explained in the Annex to this letter.

In response to your fourth question, the reason they were granted access was for business continuity purposes, for example if there were an urgent business requirement in the case of unexpected absence.

In response to your fifth question, the information held on the personal drive included materials related to Mr Hamilton’s review, plus other information connected with their work within the Scottish Government.

In response to your sixth question, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. There is no evidence that any information about the investigation was accessed by any of the individuals who had access.

This is a formal notice under Section 17(1) FOISA that the Scottish Government does not have the information you have requested. Having conducted appropriate and proportionate searches for information in line with your requests, the Scottish Government holds no recorded information within the scope of your request.

In response to your seventh question, while our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section s.38(1)(b) (personal information) of FOISA apply to that information. The reasons why that exemption applies are explained in the Annex to this letter.

In response to your eighth question, none of the individuals were special advisers.

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under section s.38(1)(b) (personal information) and s.36(1) (confidentiality of communications) of FOISA apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

In response to your ninth question, the reason they were granted access was for business continuity purposes, for example if there were an urgent business requirement in the case of unexpected absence.

In response to your tenth question, while our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section s.36(1) (confidentiality of communications) of FOISA applies to that information. The reasons why that exemption applies are explained in the Annex to this letter.

In response to your eleventh question, while our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under section s.38(1)(b) (personal information) and s.36(1) (confidentiality of communications) of FOISA apply to that information. The reasons why that exemption applies are explained in the Annex to this letter.

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 202500449874 - Information released - Annex

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