Secretariat to Former Independent Adviser to the Scottish Government: FOI release

Information requested

1. In FOI/202300382811 GOVERNMENT PHONES ISSUES TO MINISTERS there is a list of names of officials that the Scottish Government states are senior enough to be named.

If the name of the official who carried out the secretariat role for James Hamilton is included in this list then there is no legitimate reason that their name should be withheld or redacted in any other documentation from the SG as it will already have been disclosed into the public domain.

Please confirm that the female official who was the secretariat for James Hamilton was on this list and provide their name.

2. Also, in regard to this secretariat, in FOI202500452188 there is a document listed as Appendix A. This is email correspondence between James Hamilton and the secretariat.

She states in an email to James Hamilton:

I mentioned several weeks ago that I was working on a couple of things relating to the records keeping and retention of the documents created during the investigation. This will ensure that data protection and record keeping for the investigation is properly conducted.

The first relates to where the records showing the conduct of the investigation would be retained. I have attached a draft retention policy, which sets out the core principles, roles and responsibilities of the various parties, and the steps that would be taken to deposit the information with NRS. This will ensure that the records of the investigation are retained in a suitable fashion. Could you have a look and let me know of any comments?

The information transferred will be assessed for sensitivity; I have conducted an initial assessment of this and would suggest that an exemption would apply to the information initially. I can explain this in more detail if that would be helpful?

I have also discussed records keeping and data protection issues with colleagues with expertise in data protection, who have advised that in order to keep things right from a data protection perspective we need to write to participants to let them know what will happen to their information, and to give them an opportunity to object to information being retained and transferred to NRS. I have prepared the attached sample letter which sets this out, and includes two variants of text depending on what is transferred. Could you let me know if you are content for me to prepare letters to the various participants?

I would like copies of all the information and documents referenced above including the previous correspondence mentioned initially and the subsequent correspondence as well. James Hamilton had his own legal advisor, apart from the SG, so there should be no exemptions that should prevent the disclosure of that information.

3. Another thing, the whole issue with the data being transferred to the NRS does not seem to have been done. The secretariat herself mentioned that records keeping and retention of the documents created during the course of the investigation would be needed for the investigation to be properly concluded. If this was not done though would this not mean that the investigation was not properly concluded? Clearly if the records of the investigation have not been retained in a suitable fashion that is a real problem. Why has this not been done? Why did the SG falsely claimed previously that it had been done?

4. Lastly, it was suggested to the secretariat that she create a secure mailbox, by official James Hynd, as part of her role supporting James Hamilton. As she did not take on the role of the secretariat until around 18 August 2020 then clearly she could not have had a secure mailbox before this point. How then did some staff have access to her secure mailbox from 2019 onwards as the SG claim? Did the secretariat actually bother to create a secure mailbox or did she just use an existing one? There is correspondence between James Hamilton and James Hynd before she accepted the role so what mailbox was that correspondence kept in?

Response

1. In response to the first part of your request regarding the identity of the secretariat who provided support to Mr Hamilton, I must advise that whilst our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under Section 38(1)(b) (personal information) of FOISA applies to that information, because it is the personal data of a third party, in this case a Scottish Government official below the level of Senior Civil Servant. 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.

2. In the second part of your request, you seek information relating to the above email exchange.

Previous Correspondence Regarding Records Keeping and Retention

I can advise that the previous correspondence regarding records keeping and retention that you have requested is attached as an annex.

An exemption under section 30(c) (the effective conduct of public affairs) of FOISA 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, 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.

Documents Referred to in Email Extract

An exemption under section 30(b)(ii) of FOISA (free and frank discussion for the purposes of deliberation) applies to the documents referred to in the email extract above, i.e. the draft retention policy and sample letter. This exemption recognises the need for officials to have a private space within which to consider options and develop advice before reaching the settled public position. Disclosing the content of free and frank discussion would substantially inhibit such consideration in the future.

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 to consider options and develop advice before reaching the settled public position. 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 officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Subsequent Correspondence

With regards to any subsequent correspondence, 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) of FOISA that the Scottish Government does not have the information you have requested. Having conducted appropriate and proportionate searches for information in line with your requests, the Scottish Government holds no recorded information within the scope of your request as no further work was undertaken on consideration of transfer to NRS.

3. In the third part of your request, you ask for information regarding the proposed transfer of data to National Records of Scotland. It may be helpful if I explain that the work undertaken by Mr Hamilton was done so with the understanding that, as an independent inquiry, the record keeping and retention principles of the Scottish Government did not apply, and bespoke principles had to be put in place. However, as clarified by the Scottish Information Commissioner in his decision 004/2023, the information gathered by Mr Hamilton in preparing his report is held by the Scottish Government. The Scottish Government’s Records Management Plan therefore applies to the information, and will be transferred to the National Records of Scotland in line with the schedules set out therein.

With regards to your question regarding a “false claim” by Scottish Government that the transfer of records to NRS has beencompl eted, I can advise that 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) of FOISA that the Scottish Government does not have the information you have requested. Having conducted appropriate and proportionate searches for information in line with your requests, the Scottish Government holds no recorded information within the scope of your request

4. Finally, you ask for information regarding the secretariat’s mailbox. With regards to the security of and access to this mailbox, I can advise that the information you have requested is available on the Scottish Government website at https://www.gov.scot/publications/foi-202400394394/ following a previous FOI response. The information regarding the mailbox is available at p.42. 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 listed, then please contact me again and I will send you a paper copy.

With regards to your query regarding email exchanges between Mr Hamilton and Mr Hynd, and which mailbox they would have been stored in, I can advise that 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) of FOISA that the Scottish Government does not have the information you have requested. Having conducted appropriate and proportionate searches for information in line with your requests, the Scottish Government holds no recorded information within the scope of your request.

However, it may be helpful if I explain that emails which form part of the official record are stored in the Electronic Records and Document Management System of the Scottish Government.

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 202500469235 - Information released - Annex A

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