Handling of harassment complaints: FOI release

Information requested

1. A copy of/all information contained in the letter from the Deputy First Minister to the Convenor/Committee on Scottish Government Handling of Harassment Complaints dated 31 August 2020.
2. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment Complaints dated 20 July 2020.
3. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment Complaints dated 28 July 2020.
4. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment Complaints dated 4 August 2020.
5. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment Complaints dated 18 August 2020.
6. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment Complaints dated 21 August 2020.
7. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment  Complaints dated 21 August 2020. (There should be two separate letters for 21 August 2020 hence why they are repeated twice in the list.)
8. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment Complaints dated 27 September 2020.
9. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment Complaints dated 14 October 2020.
10. A copy of/all information contained in the letter from Levy & McRae to the Convenor/Committee on the Scottish Government Handling of Harassment Complaints dated 15 October 2020.
11. A copy of/all information contained in Lord Pentland’s notes of 4 October & 14 December 2018.
12. A copy of/all information contained in documents labelled INV323 for the Committee on the Scottish Government Handling of Harassment Complaints.
13. A copy of/all information contained in documents labelled INV584 for the Committee on the Scottish Government Handling of Harassment Complaints.
14. A copy of/all information contained in documents labelled INV096 for the Committee on the Scottish Government Handling of Harassment Complaints.
15. A copy of/all information contained in documents labelled INV662 for the Committee on the Scottish Government Handling of Harassment Complaints.
16. A copy/all information contained in the draft letter to former First Ministers and party leaders (The First Minister said the following in her evidence session Wednesday 03 March 2021: “I requested it [meaning the letter] yesterday. I see no reason why it would not or should not be disclosed, so I am happy to undertake that that will be done.”)
17. A copy of/all information contained in the Transcript of the Commission & Diligence process.
18. A copy of/all information contained in the Inventory of Recoveries which lists all the documents produced during the course of the Commission & Diligence process.
19. Lastly, revised FOI Response 202200304533 makes mention of documents not being correctly dated at the time and not being found by the initial FOI case handler or reviewer. I suspect there are many more documents that have been missed in this way. Please could you do a search and list all the documents that have been similarly incorrectly dated/filed? To narrow the scope I would suggest checking documents pertaining to the Scottish Government’s Complaints Procedure (known as The Procedure), the Judicial Review and Committee on Committee on the Scottish Government Handling of Harassment Complaints.

Response

Item 1

The information you have requested under item 1 is available from the Committee on the Scottish Government's Handling of Harassment Complaints webpages, hosted on the Scottish Parliament website. Item 1 of your request is available on these pages and it is also referenced in the Committee's final report.

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(s) listed, then please contact us again and we will send you a paper copy.

Items 2 - 10

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested under items 2 - 10. The reasons why we do not have items 2 - 10 in your request are explained below.

The Scottish Government does not have the information because the Scottish Government is neither the sender nor the recipient of the correspondence you have asked for. The Scottish Parliament may have the information you are looking for as the correspondence was addressed to the Committee Convenor.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested. However, you may wish to contact the Information Management and Governance Team at the Scottish Parliament at Requesting information | Scottish Parliament Website who may be able to help you.

Item 11

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 17(1) applies.

After completing comprehensive searches, the Scottish Government does not hold a copy of/all information contained in Lord Pentland's notes of 4 October that you requested.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.

An exemption under section 37(1)(a)(iii) of FOISA (Documents created by a court, inquiry or arbiter) applies to a copy of/all information contained in Lord Pentland’s notes of 14 December 2018 that you requested because the information contained in the document was created by a court in the course of the Judicial Review into the Ministerial Complaints Procedure. Information held only because it is contained in documents created by a court are exempt under FOISA. 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.

Items 12 - 15

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because exemptions under section 26(c) (prohibitions on disclosure: contempt of court) and section 35(1)(g) (substantial prejudice to exercise of functions by public authority) apply to that information. The reasons why these exemptions apply are set out below.

An exemption under section 26(c) of FOISA (prohibitions on disclosure: contempt of court) applies to this information because disclosure would be incompatible with the agreement intended to settle the judicial review proceedings, to which the court gave its authority on 8 January 2019. The Scottish Ministers gave an undertaking to the court as part of that agreement, and we consider that the aim of the undertaking would be undermined were the information in INV323, INV584, INV096 and INV662 to be disclosed. Breach of an undertaking is punishable as a contempt of court, and so we have concluded that the exemption applies.

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.

An exemption under section 35(1)(g) as read with section 35(2)(b) of FOISA applies. This exemption applies because disclosure would be likely to prejudice substantially the exercise by the Scottish Government of its functions in relation to ascertaining whether a person is responsible for conduct which is improper. We have concluded that disclosure of details surrounding this complaint would cause substantial prejudice to the Scottish Government’s ability to process future complaints of improper conduct. We consider that those who made such a complaint at the time had a reasonable expectation of confidentiality and that this is particularly important where there is an imbalance of power (as when a civil servant makes a complaint about a current or former Minister).

Therefore, we consider that if future complainers reasonably apprehend that information about the complaint of improper conduct against current or former Ministers will be disclosed in a manner not consistent with the process and expectations at the time of the complaint, then they would lose confidence and be substantially inhibited from making complaints.

This exemption is subject to the public interest test. Therefore, taking into account all the circumstances of the 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 general public interest in disclosure as part of open and transparent government, and to inform public debate. We also recognise that there is a public interest in understanding how the Scottish Government deals with such a complaint. However, we consider that there is a greater public interest in ensuring that future complainers are not deterred from making complaints of improper conduct and in respecting the confidentiality which they reasonably expect as part of that process. The function of ascertaining whether a person is responsible for conduct which is improper would be frustrated in its entirety if complainers are unwilling to make such complaints or persons complained about are reluctant to cooperate because they reasonably apprehend that details surrounding the complaint will be made public in a manner inconsistent with the expectations at the time of the complaint.

Item 16

A copy of the draft letter to Former Ministers and Party Leaders that you requested is attached.

Item 17

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested under item 17 because an exemption under section 17(1) applies.

After completing comprehensive searches, the Scottish Government does not hold “a copy of/all information contained in the transcript of the commission and diligence process” that you requested.

This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

Item 18

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested under item 18 because an exemption under section 37(1)(a)(iii) applies.

An exemption under section 37(1)(a)(iii) of FOISA (documents created by a court, inquiry or arbiter) applies to the information you requested because the information contained in the document was created by a court in the course of the Judicial Review into the Ministerial complaints procedure. Information held only because it is contained in documents created by a court are exempt.

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.

Item 19

In response to your request, while our aim is to provide information whenever possible, Section 12 of FOISA provides that Scottish public authorities are not required to respond to requests for information if the cost of doing so exceeds an upper cost limit. In this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600.

The reason the upper cost limit is exceeded is because your request to search documents related to the procedure, the Judicial Review and the Committee on the Scottish Government’s Handling of Harassment Complaints (SGHHC) covers a large amount of information. In order for a thorough and comprehensive search to take place, the dates on all of the documents in the criteria you specify above would need to be checked, which would exceed the £600 cost limit. You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. For example, you might wish to consider requesting a document by name that you think has been incorrectly dated. This would reduce the amount of information that needs to be considered. You may also find it helpful to look at the Scottish Information Commissioner’s Tips for requesting information under FOI and the EIRs.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI202300337672 - 16 Draft letter to Former First Ministers

File type

2 page PDF

File size

96.2 kB

FOI202300337672 - 16 Draft letter to Scottish Party Leaders

File type

2 page PDF

File size

96.2 kB