Information pertaining to Scottish Information Commissioner decision 004/2023: FOI release

Information requested

In relation to the legal advice released by the Scottish Government in October 2024 in relation SIC decision notice 004/2023 and the court case XA10/23. The following passages exist:

"It shows that Ministers failed to convey accurately the true position when making submissions to the Commissioner" and "Scottish Ministers will need to correct any misleading statements made in their submissions to the Commissioner, with the potential consequences noted above." and "There he notes that that the force of any submissions that we make here might be undermined by having to correct what was said to the Commissioner in submissions to him,"

1) What false information was given to the SIC in the investigation of 004/2023 as described above?

2) I request a copy of these false submissions.

3) Who was responsible for the release of false information to the SIC in the investigation of 004/2023?

4) Who was the lead official (s) and non-lead officials in the Scottish Government in regards to the SIC investigation of 004/2023?

5) When and how did the Scottish Government first become aware that it had provided false information to the SIC in the investigation of 004/2023?

I also ask for who discovered this, as well as the communications surrounding this.

Response

1) What false information was given to the SIC in the investigation of 004/2023 as described above?

2) I request a copy of these false submissions.

These submissions were made to the Commissioner in June 2022 in relation to the Hamilton investigation secretariat arrangements.

This information was provided in good faith and reflected the Scottish Government understanding at that time. As the documents published on 26 October 2024 show - Legal advice given to the Scottish Government/Ministers in reference to Legal advice given to the Scottish Government/ministers in reference to The Scottish Ministers v The Scottish Information Commissioner (case reference number XA10/23): FOI Appeal - gov.scot - the position was clarified during discussions with Counsel and in preparation for the Court of Session case.

The Scottish Government was then rightly open with the Court about this matter, as reflected in the Court’s written judgment (paragraph 28) in December 2023.

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, ie, eg names/contact details of junior officials 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.

Please find attached the submission in relation to the storage of documents.

3) Who was responsible for the release of false information to the SIC in the investigation of 004/2023?

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested.

This is a formal notice under section 17(1) (Information not held) of FOISA that the Scottish Government does not hold the information you seek.

The Scottish Government does not have the information you have asked for because ‘false information’ was not provided to the Office of the Scottish Information Commissioner. As noted previously, information was provided to the Commissioner when the original FOI was appealed, and was provided in good faith which reflected an accurate representation of the Scottish Government’s understanding at that time.

4) Who was the lead official (s) and non-lead officials in the Scottish Government in regards to the SIC investigation of 004/2023?

An exemption under section 38(1)(b) of FOISA (personal information) applies to a some of the information requested because it is personal data of a third party, ie, eg names/contact details of junior officials 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.

Lead officials

There was 1 lead official. The name is redacted under section 38(1)(b)

Non lead officials

There were 3 non lead officials: Penny Curtis and David Rodgers. The third non lead official’s name has been redacted under section 38(1)(b)

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, ie, eg names/contact details of junior officials 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.

5) When and how did the Scottish Government first become aware that it had provided false information to the SIC in the investigation of 004/2023?

I also ask for who discovered this, as well as the communications surrounding this.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested.

This is a formal notice under section 17(1) (Information not held) of FOISA that the Scottish Government do not hold the information. The Scottish Government does not have the information you have asked for because we do not hold ‘false information’.

As noted previously, information was provided to the Commissioner when the original FOI was appealed, and was provided in good faith which reflected an accurate representation of the Scottish Government understanding at that time.

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 202500452221 - Information released - Annex

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