Formal complaints made about the behaviour of Special Advisers: FOI Review

Information requested

Original request: 202500489885

1. The total number of formal complaints made about the behaviour of Special Advisers, broken down by year

2. For each complaint:

• The nature/category of the complaint (e.g. bullying, harassment, unprofessional behaviour, etc.).
• The outcome of the complaint (e.g. upheld, partially upheld, not upheld, withdrawn, ongoing).
• Whether any formal action or sanction resulted, described in general terms (e.g. no action, management action, disciplinary action, training, mediation).

3. A copy of any Scottish Government guidance, policy, or procedure documents specifically governing how complaints against Special Advisers are handled.

Response

Thank you for your email of 21st October 2025, requesting an internal review of the Scottish Government’s response (reference 202500485300) to your FOI request dated 19th September 2025 concerning formal complaints about the behaviour of Special Advisers. You have sought additional review of the following:

Your original request

1. “The total number of formal complaints made about the behaviour of Special Advisers, broken down
by year

2. For each complaint:
The nature/category of the complaint (e.g. bullying, harassment, unprofessional behaviour, etc.).

The outcome of the complaint (e.g. upheld, partially upheld, not upheld, withdrawn, ongoing).

Whether any formal action or sanction resulted, described in general terms (e.g. no action, management action, disciplinary action, training, mediation).

3. A copy of any Scottish Government guidance, policy, or procedure documents specifically governing how complaints against Special Advisers are handled.”

Your review request

While I understand that names or identifying details must be withheld, it should still be possible to disclose non-identifying information about each complaint, such as:

• the general category or nature of the complaint (e.g. bullying, harassment, unprofessional behaviour).
• the outcome (e.g. upheld, not upheld, withdrawn, ongoing); and
• the type of action taken (e.g. training, management action, no action).

This type of information is routinely disclosed by public bodies in similar cases without identifying individuals.

Failure to apply the public-interest test.

Although section 38(1)(b) is an absolute exemption, the Government has not considered whether anonymised or summary data could be provided in the public interest. The existence of only two complaints does not necessarily make all information about them identifying, especially if presented in general terms.

Incomplete disclosure of relevant policy documents. My request sought any guidance, policy, or procedure documents specifically governing how complaints against Special Advisers are handled. The response only linked to the Special Advisers Code of Conduct, which is not a complaints-handling procedure. Please confirm whether any internal HR guidance, disciplinary procedures, or Cabinet Secretariat instructions exist that set out how formal complaints against Special Advisers are investigated or managed.

I have reviewed FOI reference 202500485300 and the response issued and have concluded that the original decision should be confirmed with modification.

In our original response we provided you with the year and number of formal complaints made against special advisers, and you have asked for additional non-identifying information about each complaint.

I am satisfied that exemption section 38(1)(b) of FOISA (personal information) and the data protection principles set out in Article 5(1) of the UK General Data Protection Regulation and in section 34(1) of the Data Protection Act applies to some of the information you have requested. Specifically, we have applied this exemption to cover this sensitive personal data, which covers disciplinary matters, and is protected. Therefore, while our aim is to provide information wherever possible, in this instance we are unable to provide the information you have requested about the category, outcome and how these complaints were resolved because an exemption under section 38(1) b) of FOISA (personal information) applies to that information. This exemption applies because the information is the personal data of third parties and disclosing it would contravene the data protection principles set out in Article 5(1) of the UK 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.

In your review request, you have highlighted that this type of information has been disclosed elsewhere and queried whether the information could be disclosed in general terms.

As part of my review, I have considered whether the release of anonymised or summary data is appropriate. I am content that the use of this exemption remains appropriate for this request and that it is not subject to the public interest test, therefore we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) also applies to some of the information you have requested. Disclosing this information would substantially prejudice our ability to conduct Disciplinary and Grievance Processes because of the sensitive nature of the disclosures made and confidentiality requirements through these processes. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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. However, there is a greater public interest in protecting the process of the Disciplinary and Grievance Processes and ensuring that the Scottish Government is able conduct this aspect of its business effectively.

The documents that you have requested in question 3 of your original request are attached:

• Scottish Government Grievance Procedure
• Scottish Government Grievance Policy

This policy and procedure apply to all staff, including senior civil servants (SCS) and special advisers (SpAds). I apologise that this was not included as part of your original response.

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 202500489885 - Information released - Annex

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