Communications regarding members of the Scottish Parliament: FOI Review

Information requested

Original request 202500486016

1) Any communications - including texts, WhatsApps, emails, Teams messages, or any other sort of written communications - from Wednesday September 17 to Wednesday September 24 on the topic of Jamie Hepburn.

2) Any communications - including texts, WhatsApps, emails, Teams messages, or any other sort of written communications - from Wednesday September 17 to Wednesday September 24 which mentions Douglas Ross.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).

I have concluded that the original decision should be confirmed, with modifications.

In reviewing the material released to you line by line it is apparent that, as you have highlighted, there were occasions when exemptions under section 38(1)(b) of FOISA were not correctly applied. There were a number of occasions when section 38(1)(b) was not applied when it should have been (when names and email addresses of Scottish Government staff under the grade of Senior Civil Servant were left unredacted). There were also a number of occasions when section 38(1)(b) was applied when it should not have been (when the names and email addresses of Scottish Government staff of Senior Civil Servant grade and the names and email addresses of Special Advisers were redacted). This appears to have arisen as a result of inadvertent human error when applying multiple redactions to a large number of email addresses over 41 pages of email correspondence. I have attached at Annex A a revised version of the material previously released which corrects these errors.

I can therefore confirm that an exemption under section 38(1)(b) of FOISA (personal information) applies to a some of the information requested because it is personal data of a third party, i.e. names and contact details of civil servants below the grade of Senior Civil Servant, 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.

I have also reviewed the material released to you line by line to check whether the redactions made under section 30 of FOISA were correctly applied. Generally, I found that these were correctly applied and that the public interest test was met because I found that the release of most of the redacted material would substantially inhibit the provision of free and frank advice to Ministers in the future. I found that all of the redactions made under section 30 should be subject to the exemption under section 30(b)(i) of FOISA. I have therefore reviewed the public interest test of all of these redactions in relation to that particular exemption and I have set out my findings in the following paragraph.

It is vital that a private space exists for officials to advise Ministers on the application of the Scottish Ministerial Code, the handling of complaints made under the Code and on the development of related media lines, before Ministers reach a settled view. Having taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I 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 officials can provide full and frank advice to the First Minister, as part of the process of exploring and refining the Government’s position on matters being considered under the Ministerial Code, until the First Minister can adopt a decision that is sound and likely to be effective. 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 Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

In reviewing the material withheld in the original response under section 30 I have, however, identified some text that I do not believe is exempt from release under section 30 of FOISA. As such, I have released, in the document attached at Annex A, small amounts of text that was previously redacted, on pages 2, 4, 7, 8, 9, 12, 35 and 39.

I apologise for the inadvertent errors made in the original response and I hope that you are reassured by this review under which the original response was subject to very careful consideration on a line by line basis which found that in most part, aside from the changes referred to above, exemptions were correctly applied under both section 30 and section 38.

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 202500491541 - Information released - Annex A

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