Former Independent Adviser to the Scottish Government communications: FOI Review

Information requested

Original request 202500458906

In regards to the FOI below, in regards to the 2nd question:

"[23/03/2021, 23:08:13] James Hamilton: Hi [Redacted] There is some irony in the fact that the official redactors left far more information in the text than there was in my anonymised versions!"

1) What form of communication is this? Whatsapp, email, etc?

2) Was this communication between Mr Hamilton and Mr Hamilton's secretariat? If not, who?

3) How many individuals received this message?

4) If Whatsapp and if the message was sent to his secretariat how long had Mr Hamilton and his secretariat been communicating through whatsapp?

5) I request all the messages in this conversation from which the above message was extracted from.

Response

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

In regards to the FOI below, in regards to the 2nd question:

"[23/03/2021, 23:08:13] James Hamilton: Hi [Redacted] There is some irony in the fact that the official redactors left far more information in the text than there was in my anonymised versions!"

1) What form of communication is this? Whatsapp, email, etc?

2) Was this communication between Mr Hamilton and Mr Hamilton's secretariat? If not, who?

3) How many individuals received this message?

4) If Whatsapp and if the message was sent to his secretariat how long had Mr Hamilton and his secretariat been communicating through whatsapp?

5) I request all the messages in this conversation from which the above message was extracted from.

In accordance with section 21(4) of FOISA, I have also reached a decision on your request.

I apologise for the delay in responding to you. This was as a result of the volume of FOI requests received.

I can now provide our response to your original request.

The answer to your first, second and third questions, this was a whatsapp conversation between Mr Hamilton and his Secretariat, and no other individuals were part of this conversation.

In response to your fourth question, the first message on Whatsapp between Mr Hamilton and his Secretariat was on 4 September 2020.

In response to your fifth question, I enclose a copy of some of the information you requested.

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 section s.38(1)(b) (personal information), s.26(c) (contempt of court), s.30(c) (effective conduct of public affairs) 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 addition, some of the information is out of scope as it is entirely personal and has no relevance to Scottish Government business.

ANNEX

Section 38(1)(b) (personal data of a third party)

Section 38(1)(b) applies to some of the information because it is personal data of a third party, in this case, the names of Scottish Government officials below the level of Senior Civil Servant, and other personal information. Disclosing this 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.

Section 26(c) (contempt of court)

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information requested because an exemption under section 26(c) of FOISA (prohibitions on disclosure: contempt of court) applies to the information because disclosure might identify complainers who are subject to an order under the Contempt of Court Act 1981. The order was made by the court in the context of the criminal trial of Mr Salmond.

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.

Section 30(c) (the effective conduct of public affairs)

An exemption under section 30(c) of FOISA applies to a some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

An exemption under section 30(c) (the effective conduct of public affairs) of FOISA also applies to some of the information you have requested in relation to material provided to the Independent Adviser. This is to enable the Independent Advisers on the Ministerial Code to be able to consider and discuss issues raised in a private space before formalising the outcome of their deliberations and advising the First Minister of their decisions. Information provided to them for the purposes of their functions is provided in confidence.

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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

With reference to the information provided to the Independent Adviser on the Ministerial Code, 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, this is outweighed by the public interest in allowing the consideration of complaints received under the Ministerial Code to be undertaken in a private space.

Section 36(1) (legal advice privilege)

An exemption under section 36(1) of FOISA applies to the information requested because it is covered by legal advice privilege. Legal advice privilege applies to information created which is confidential communications between legal advisers and their clients. Disclosure of such information would breach legal professional privilege.

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 some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence and discuss the implications of that legal advice, like any other public or private organisation.

There is a strong public interest in maintaining confidentiality of communications between legal adviser and clients. It is clearly in the public interest for lawyers to be able to provide free and frank legal advice to their clients, considering and discussing all issues and options, without fear that the advice might be disclosed and potentially taken out of context. It is also in the public interest that decisions are taken by the Government in a fully informed legal context. Ministers and officials therefore need high-quality, comprehensive legal advice for the effective conduct of their business and have the confidential space to discuss the implications of that legal advice. The advice needs to be given in context, and with a full appreciation of relevant facts. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.

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 202500458906 - Information released - Document

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