Information regarding meeting transcripts between the Former Deputy First Minister and the Former First Minister: FOI release

Information requested

1) Who was the named interviewee who was sent transcripts of meetings, when did this happen and why?

2) Which transcripts were sent to this in named interviewee? Were any transcripts which weren't the named interviewee sent to them?

3) Were the other individuals whose transcripts were being shared to this named interviewee informed that this was happening?

4) Was Mr Hamilton aware that this sharing of transcripts was occurring?

5) I request all communications from the secretariat/Mr Hamilton to the named interviewee (and vice-versa) in regards to this "for comment" request.

Response

In relation to your first 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 an exemption under section 30(c) (effective conduct of public affairs) of FOISA applies to that information. The reasons why this exemption applies are explained in Annex A to this letter.

The transcript was sent on 12 March 2021. The reason why the transcript of the meeting was shared with the interviewee was to ensure its accuracy and give them the opportunity to clarify or correct any statements.

In relation to your second and third requests, only the transcript of the interview in question was sent to the interviewee; no other transcripts were shared.

In relation to your fourth request, Mr Hamilton was aware that the individuals being interviewed were being provided with their own transcripts to confirm accuracy.

In relation to your fifth request, while 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 30(c) (effective conduct of public affairs), of FOISA applies to that information. The reasons why this exemption applies are explained in Annex A to this letter.

ANNEX A

Section 30(c) (substantial prejudice to the effective conduct of public affairs)

An exemption under section 30(c) (effective conduct of public affairs) applies to some information submitted to Mr Hamilton as part of his investigation in respect of the First Minister’s self-referral which was carried out in accordance with paragraph 1.7 of the Scottish Ministerial Code.

We consider that disclosure of the names of the people that Mr Hamilton interviewed in confidence and on the understanding that material would not be released other than as part of Mr Hamilton’s report would be likely to deter individuals from providing free and frank evidence in such investigations in future. In our view, disclosure would be likely to undermine the process whereby such investigations are carried out, and it is likely that this would affect the independent advisers’ ability to deal with referrals and produce reports in terms of the Scottish Ministerial Code in 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 transparency, particularly in relation to the work that the independent advisers undertake, in evidencing that their investigations are carried out objectively and independently, and in understanding fully the processes used by the independent advisers when a referral is made to them.

However, we consider that there is a greater public interest in allowing the independent advisers to obtain all of the information that they require in order to carry out their investigations, before enabling them to consider all of that information and draw conclusions to inform their reports, without that part of the process necessarily being put into the public domain. We consider that Scottish public authorities and their staff (principally, but not exclusively, the Scottish Government) would be far more reticent in participating in such investigations in the future if evidence and submissions were to be disclosed when they had understood their evidence was to be taken in confidence. In short, there is a greater public interest in ensuring that independent advisers can fulfil their functions under the Scottish Ministerial Code effectively and that future referrals are not prejudiced. We also take the view that the public interest is, at least in part, served by the publication of the independent adviser’s report on completion of the investigation.

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