Covid Counter-Fraud Commissioner correspondence: FOI release

Information requested

All correspondence sent to and from the Government to the Covid Corruption Commissioner, and/or his office, as well as minutes/notes from meetings between the same organisations, from the last six months.

Response

We have interpreted your request as a request for all correspondence sent to and from the Scottish Government to the Covid Counter-Fraud Commissioner, and/or his office, as well as minutes/notes from meetings between the same organisations within the last six months.

I enclose for your review, redacted copies of correspondence sent to and from the Scottish Government to the Covid Counter-Fraud Commissioner, and his office, as well as notes of a meeting which fall within the scope of your request.

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 sections 28 (relations within the UK), 30 (prejudice to effective conduct of public affairs) and 38 (personal information) of FOISA apply to some of the information. The reasons why those exemptions apply are explained in the Annex to this letter.

Annex: Reasons for not providing information due to exemptions

The following exemptions under FOISA apply to some of the information you have requested:

• Section 28(1) – Relations within the UK
• Section 30(c) – Prejudice to effective conduct of public affairs
• Section 38(1)(b) – Personal data relating to third parties.

Most of these exemptions are 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 exemptions. The reasons why we have concluded that the exemptions apply and should be upheld in the public interest are more fully explained below.

Section 28(1) – Relations within the UK

An exemption under section 28(1) of FOISA applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government, to the extent that it would involve disclosure of policy proposals by the UK Government which are not yet in the public domain and still under development.

It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government, the UK Government and the other devolved administrations. The release of these communications about ongoing work of the Covid Counter-Fraud Commissioner would mean that the UK Government is likely to be more reluctant to share such information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations. This exemption is subject to the public interest test. 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 withholding it. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a strong 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 maintaining good relations between the Scottish Government and the UK Government and in encouraging the sharing of relevant information as part of policy development on devolved issues. It is vital that the free exchange of information between administrations can be protected, to ensure that we keep each other fully and regularly informed about matters of mutual interest, including Covid counter-fraud work. The conversations that have taken place between the Scottish Government and the Covid Counter-Fraud Commissioner were with a view to informing the Scottish Government about policy proposals still under formulation and prior to there being any clear policy to communicate publicly. None of the draft policy proposals which were discussed have been announced by the UK Government to date. Disclosure would be likely to damage the trust and cooperation between the Scottish and UK Governments. There is no public interest in disclosing information when that would likely damage relationships and have an inhibiting effect on future communications and risk undermining future collaborative relationships and discussions between the two administrations.

Section 30(c) – Prejudice to effective conduct of public affairs

An exemption under section 30(c) of FOISA applies to some of the information requested. Disclosing this information would prejudice substantially our ability to engage in discussions with the UK Government about draft policy measures and plan for how those may be implemented in Scotland. This exemption has been applied in this case because disclosure of correspondence and meeting notes between Scottish Government and the Covid Counter-Fraud Commissioner and/or his office about draft policy proposals could undermine the ability of officials in the Scottish and UK Governments to engage in free and frank communications about policy formation before information is in the public domain. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

This exemption is subject to the public interest test. While we recognise that there is a public interest in openness and accountability, including an understanding of how policies are formed and reviewed, we consider that in this instance, the public interest in maintaining the effective conduct of public affairs outweighs the interest in disclosure. Disclosure risks undermining officials’ ability to engage in free and candid discussion in sensitive or early-stage policy matters and is likely to have a freezing effect on the sharing of information relevant to matters devolved to the Scottish Government in the future. Having a private space for discussion is essential to enable all options for policy proposals affecting all parts of the UK to be properly considered, so that such decisions can be taken based on fully informed advice and evidence. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and UK Government, which in turn will undermine the quality of the decision-making process relating to Covid counter-fraud, which would not be in the public interest.

Section 38(1)(b) – Personal information

An exemption under section 38(1)(b) of FOISA also applies to some of the information contained within the emails because it is the personal data of third parties, i.e. the names of individuals, telephone numbers and email addresses of Scottish Government and UK Government officials. Disclosing this information would contravene the data protection principles in Article 5(1) of the General Data Protection Regulations 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 apply the exemption. We have applied redactions to the details of any officials below Senior Civil Service level.

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 202500464426 - Information released - Annex

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