Scottish Government and Ministerial Code Former Advisor communications: FOI release

Information requested

Any and all communications between the Scottish Government (officials, SPADs, ministers, everyone) and Mr James Hamilton, the then advisor on the ministerial code from April 1st 2021 to December 31st 2023.’

Response

I apologise for the delay in responding to this request. This was due to a combination of annual leave and it taking longer than expected to collate the information.

Most of the information you have requested is at APPENDIX A.

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 exemptions under s.38(1)(b) (personal information), s.25(1) (information otherwise accessible), s.26(c) (prohibitions on disclosure); and s.30(b)(ii) (free and frank discussion for the purposes of deliberation) of FOISA applies to that information.

The reasons why these exemptions apply are explained below. An exemption 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, i.e. names and contact details of 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 includes the names and contact details of civil servants below the grade of Senior Civil Servant. 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.

An exemption under section 30(b)(ii) of FOISA (free and frank discussion for the purposes of deliberation) applies to some of the information requested. This exemption recognises the need for Ministers to have a private space within which to seek advice and views from officials and advisers before reaching the settled public position. Disclosing the content of free and frank briefing material provided to Ministers by their advisers may substantially inhibit such briefing and consideration in the future by other advisers if they cannot be confident that their views are being shared in confidence. 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 and advisers can provide full and frank advice to Ministers as part of the process of exploring and refining the Government’s policy decisions. 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 Ministers and officials and advisers, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

An exemption under s.25(1) (information otherwise accessible) applies to some of the information requested. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

The material is available here: Making a formal complaint about a minister’s or former minister’s behaviour: procedure - gov.scot

An exemption under section 26(c) of FOISA (prohibitions on disclosure) applies to some parts of the information requested because disclosure of this further information is prohibited by or under an enactment, is incompatible with an EU obligation or would constitute, or be punishable as, contempt of court. 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 202500452188 - Information Released - Annex

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