Special Advisers relationship with Freedom of Information requests: FOI Review

Information requested

Original request 202500447375

1) It is a requirement that SPADs and/or the FM's chief of staff clear FOI responses from civil servants in the FOI unit?

2) How many FOIs were received by the Scottish Government in 2024, and how many of these were cleared by SPADs and/or FM's chief of staff before release?

3) What is the purpose of the following email address: foi.spadsPO@gov.scot. Which SPADs have access to this email inbox, how many emails did it receive in 2024 in relation to FOIs and is it a requirement of civil servants in the FOI unit to submit all FOIs to this email address?

4) If not all FOIs are sent to SPADs and/or the FM's chief of staff to be cleared, please explain the decision-making process which results in SPADs and/or the FM's chief of staff being asked to or not to clear a FOI response

5) Do any SPADs work within the FOI unit within the Scottish Government?

6) I would like to known if this FOI itself was cleared by SPADs or the FM's chief of staff before release

Response

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

Your request

1) It is a requirement that SPADs and/or the FM's chief of staff clear FOI responses from civil servants in the FOI unit?

2) How many FOIs were received by the Scottish Government in 2024, and how many of these were cleared by SPADs and/or FM's chief of staff before release?

3) What is the purpose of the following email address: foi.spadsPO@gov.scot. Which SPADs have access to this email inbox, how many emails did it receive in 2024 in relation to FOIs and is it a requirement of civil servants in the FOI unit to submit all FOIs to this email address?

4) If not all FOIs are sent to SPADs and/or the FM's chief of staff to be cleared, please explain the decision-making process which results in SPADs and/or the FM's chief of staff being asked to or not to clear a FOI response

5) Do any SPADs work within the FOI unit within the Scottish Government?

6) I would like to known if this FOI itself was cleared by SPADs or the FM's chief of staff before release

Your request for review

I am dissatisfied with the response that mainly stems from point 1 which then filters down to other points that I raised. I have several meta FOI's which state the following:

In FOI 202100232352 "We’ve worked with the FOI Unit on the following response and spads are content"

In FOI 202200330635 "Just to provide some background, the annex was drafted and prepared as part of the response to 202200312123, which has already been cleared by SpAds and Ministers."

In FOI 201900004219 "6. SG FoI Unit and SpADS have been contacted and are content with the proposed response and application of exemptions."

"I would be grateful if you could confirm you are content to clear this response, approved by SPADS on 29/1, for release by COP 1 Feb 2019.

FOI 202200276773 "Given the sensitive nature of the request this obviously need clearance through SpAds and DFM."

These FOIs show that SPADs have approved FOIs, are content with FOI responses and that their clearance is required. Indeed, if SPADs have no role in approving FOIs how can they be content with the process of releasing an FOI response? Indeed, I have several other FOI’s that show the same issue with the FM’s chief of staff. This makes no sense to me, and I believe the response given is incorrect, and needs to be changed to reflect those FOIs that have been approved FOIs by SPADs/FM chief of staff, cleared by SPADs/FM chief of staff, and/or that they are content with the response to be released.

Additionally, in regards to point 3, the FOI FOI/18/00393 states on page 2 on annex A that “you may wish to add each SPADs mailbox too so that they can also access. They already have the correct permissions” this is in reference to the email address that I enquired about.

I recognise that this FOI is 7 years old, but it does contradict the response given, but this could be down to a change in access permissions? I am unsure and seek clarification on this.

I also query the fact that this email address only holds up to 3 months of emails at one time. Is this due to storage issues or manual deletion? If the former, this to me strengthens the argument that SPADs are involved in the clearance of FOIs, if the number of FOIs are that large so to speak. If the latter, then I find this disturbing.

Additionally, the answer to point 3 is vague and not clear. What does "It is a general administration mailbox for FOI related communications" actually mean?

Response to your review

I have concluded that the original decision should be confirmed, without modifications. I note that my colleague went to some effort to source answers to your questions and offer advice and assistance where we do not hold the information that you requested or cannot provide it within the upper cost limit.

Your review request suggests that rather than being unhappy with the handling of the request, you are unclear and as a result dissatisfied about the information that was sent to you, so I am offering further advice and assistance in response to your questions.

Role of Special Advisers in FOIs and associated language

Special advisers (SPADs) are employed to help ministers on matters where the work of the Scottish Government and the work of the government party/parties overlap, and where it would be inappropriate for permanent civil servants to become involved.

They provide political advice to the First Minister and Scottish Cabinet across all portfolio areas. They work closely with ministers, directorates and outside stakeholders to provide accurate and current information to help deliver Scottish Government goals.

Advisers do have a role in FOI/EIR requests, and that is outlined in the Decision-Making Criteria (DMC) document that was sign-posted to you in the request response. You may note that this document has a detailed section on the role of special advisers in offering comment in cases which are assessed as sensitive. In practice these are only a small proportion of the thousands of cases issued by the Scottish Government each year.

These comments can be used by case-handlers to inform their submission to the Minister, when they formally ask for sensitive cases to be cleared/approved for issue. Adviser comments can help ensure that the submission gives all the information that the Minister may require to make a final decision, and anticipates any questions/points they may have.

The Civil Service is an environment where information is flowing and necessarily checked/approved constantly. The language around this is long-standing and does include ‘cleared’, ‘approved’ and a number of other phrases which are used interchangeably. Following the introduction of the Decision-Making Criteria in 2018, a concerted effort was made to ensure that the language used around advisers and the FOI approval process in practice was in line with the DMC, so not referring to ‘cleared’ or ‘approved’ or any sense that advisers were giving any official approval to the case.

My experience of working with advisers has always been that they are fully aware of their role under the DMC and are extremely careful in using the correct, compliant language. We are a large organisation and sometimes my civil servant colleagues may temporarily lapse into the language they use outwith the FOI approval process. The accidental misuse of such language does not mean that advisers have had any governance/assurance role in approving FOI/EIR cases. That sits with the Minister. I note from the examples you gave that none have come from special advisers or their administration function. The phrase that advisers ‘are content’ is perfectly acceptable under the DMC, and indicates that the draft response is ready to be submitted for Ministerial approval.

As noted above, advisers work closely with ministers and civil servants in providing political advice. Civil servants handling a routine FOI/EIR case may quite legitimately discuss the information being released with their adviser for handling purposes, or send it to them for awareness. This is often related to communications handling. You will note from the DMC that there are clear guidelines on the separate, tandem development of handling plans in this event.

Administrative support for special adviser team

The Advisers team has a support team - Special Advisers Private Office - which as my colleague correctly told you in the request response is staffed by civil servants in line with other private offices in the civil service.

They make their local administration arrangements to best support their work, and the foi.spadspo@gov.scot mailbox is used as a general administration mailbox for FOI related communications. It is a working email box for administrative purposes and not a repository for official records. Official records relating to FOI/EIR cases are stored in case files in the electronic document management system, with some data also stored in the FOI case management system.

In relation to your query about case FOI/18/00393, issued almost 8 years ago and before the introduction of the DMC, I can confirm that the current administrative approach is that no special advisers have access to this email box.

I trust this additional explanation resolves your queries.

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.