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

Information requested

Please note that as part of your correspondence was a request for a review of response 202500469235, this is being responded to separately under reference 202500481549. This response is in relation to the new information you requested in your correspondence.

1. “…In your responses you frequently cite the public interest test. Please provide me with a copy of this public interest test as it is interpretated/understood by the Scottish Government and all correspondence on that…”

2. “…So even though the SG was of the view that the information was not held by them nothing seems to have been done to transfer the records to the archive despite the Secretariat believing it would only take a few weeks, if that, to do so. There clearly must be some form of correspondence relating to all this so please send me copies of that. Was the Secretariat advised that she could not transfer the records from James Hamilton and if so by whom and when?...”

3. “…As the above is from 09 February 2023 then the SG is clearly guilty of having provided false information which they had to have known was false at the time. It also contradicts what is claimed in the response. I would like an explanation for that please and also all copies of correspondence relating to this...”

4. …”In regard to the part of the response that mentions this: 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. Please send me copies of that plan…”

5. “…So, despite the above and the suggestion of James Hynd for her to do so the Secretariat did not actually create a secure mailbox but just used her existing one. That would explain how officials could have access to it in 2019, when she never took on the Secretariat role until August 2020, but does not explain why the SG put out false information that she had created one. How did that happen? Please explain…”

Response

1. In response to your request for the public interest test, I can advise that information more generally relating to the public interest test is available from the Scottish Information Commissioner’s website at: https://www.foi.scot/sites/default/files/2023-07/PublicInterestTestFOISA_2023.pdf. 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.

By way of background, it might be helpful to provide an explanation of the Public Interest Test and when it’s applied.

Please note, there is no definition of the public interest within the legislation. The following has been drawn from the OSIC briefing guidance: “ …it has been described elsewhere as “something which is of serious concern and benefit to the public”, not merely something of individual interest.

It has also been described as “something that is “in the interest of the public”, not merely “of interest to the public.” In other words, it serves the interests of the public.

When applying the test, the public authority must decide whether it serves the interests of the public better to withhold or disclose information.” Information should only be withheld where the interest in withholding it outweighs the interest of openness.

2. In response to your request for more information relating to the transfer of information to National Records Scotland, I can confirm that there is no further information beyond that which you were previously provided.

This is therefore a formal notice under Section 17(1) 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.

3. You refer to FOI 202400394394, and the quote on p.53 of the released information. The released information shows that this quote has been taken from a letter sent to the Commissioner. P.51 notes that the letters to the Commissioner were dated 13 September 2021 and 22 June 2022. The Commissioner’s Decision Notice was issued on 31 January 2023. I trust this clarifies that the information provided to the Commissioner at the time was based on the understanding at the time it was issued.

4. In response to your request for the Scottish Government Records Management Plan, I can advise that information relating to this is available from the Scottish Government’s website at: https://www.gov.scot/publications/scottish-government-records-management-plan-2/. 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.

5. You request information relating to a “false claim” by Scottish Government that the secretariat created a secure mailbox. I can confirm that there is no further information beyond that which you were previously provided. This is therefore a formal notice under Section 17(1) 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, outwith FOISA it may be helpful if I explain that references to a “mailbox” relate to the system used to send and receive electronic mail, whilst the “electronic files” referred to in the quote you’ve provided from FOI 202500452221 relates to the storing of information which forms part of the official record. Such information is held in the Electronic Records and Document Management System of the Scottish Government, as previously advised.

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.