Information related to Scottish Information Commissioner decision notice: FOI release

Information requested

1. What is the name of the individual whose role in the redaction process of the Hamilton Report was under investigation by the Scottish Information Commissioner and who wrote a signed statement to the Commissioner's office, as noted in Decision Notice 144/2025 and pages 15-18 of the below FOI release?

2. Why has this individuals name been redacted?

3. Did the person in question receive any legal advice from the Scottish Government and/or was assisted in any way in writing their signed statement by individuals within the Scottish Government? If so I request this advice/assistance.

4. Who decided that the person in question should not sign/send an affidavit to the Scottish Information Commissioner and instead sent a signed statement? I request all communications related to discussions surrounding this and the eventual decision to not sign/send an affidavit.

5. Did the first minister and/or deputy first minister have any role or knowledge of deciding whether to sign/send an affidavit and instead send a signed statement to the Scottish Information Commissioner?

6. Given the contents of the signed statement, was the Hamilton report redacted in any way on the 22nd of March following its initial internal release (as described in the signed statement) shortly after midnight on the 22nd of March? If so, which parts were redacted and when were they redacted?

Response

I apologise for the delay in issuing this response to you.

I enclose a copy of most of the information you requested. The below exemptions have been applied to some of the information requested.

17(1) of FOISA

Formal Notice that information is not held.

30(c) of FOISA

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for officials to be able to discuss and refine a draft before coming to a settled position. Disclosing this information would significantly harm the Government’s ability to carry out many aspects of its work if all of the discussions that officials have to refine a draft are disclosed, and this could adversely affect our ability to gather all of the evidence we need to make fully informed decisions 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 Ministers and officials a private space within which officials can discuss and formulate a response as part of the process of exploring and refining drafts. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, thus protecting the drafting process undertaken by officials within SG. Disclosure of this information would undermine the quality of the decision-making process, which would not be in the public interest.

36(1) of FOISA

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure 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 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, like any other public or private organisation.

Section 38(1)(b) of FOISA

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 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.

Section 30 (ii) of FOISA

An exemption under Section 30 (ii) of the Freedom of Information (Scotland) Act 2002 (FOISA) exempts information from disclosure where disclosure would, or would be likely to: (ii) inhibit substantially the free and frank provision of advice. This exemption is subject to the ‘public interest test’, so we are required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption. We recognise the public interest in allowing Ministers and officials a private space within which officials can discuss and formulate a response as part of the process of exploring and refining drafts. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, thus protecting the drafting process undertaken by officials within SG. However, we also recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. Therefore we have decided to release information identified in annex B.

1. I am unable to provide the name of the individual as the individual's name has been redacted under Section 38(1) (b) of FOISA (personal information) because it is the personal data of a third party 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 exemption 381 (b) of FOISA.

2. As above, an exemption under section 38(1)(b) of FOISA (personal information) applies to the individual’s name because it is personal data of a third party 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.

3. No, the individual did not receive legal advice from the Scottish Government and therefore I am citing Section 17(1) of FOISA - Notice that information is not held.

Yes, they were assisted by Scottish Government officials, and I attach Annex A which provides the assistance and guidance provided subject to exemptions which have been applied.

4. The person in question decided not to sign an affidavit and instead send a statement to the Scottish Information Commissioner. I enclose the information requested in Annex B.

5. The First Minister was advised of the decision to send a statement after that statement was sent to the Commissioner. The Deputy First Minister did not have sight of this and therefore no recorded information is held. However, to be helpful and provide context, I can advise that DFM was not made aware of this, as this was out with her portfolio responsibilities.

6. As per previous responses, I can confirm that Officials from the Organisational Continuity Team transferred to Mr Hamilton’s Secretariat during the week commencing 15 March 2021 to enable consideration of what redactions would be required on receipt of the report, to comply with legal requirements. Redaction of the report was undertaken on the date it was received by the Scottish Government. Redactions were completed on 22 March 2021 ahead of publication of the report.

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 202500480860 - Information Released - Annex A

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65.8 kB

FOI 202500480860 - Information Released - Annex B

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139.9 kB