Investigation regarding allegations of bullying by Fergus Ewing: FOI Release

Information requested

A copy of all correspondence between the First Minister's office and the FDA union about the investigation and/or report into allegations of bullying by Fergus Ewing while he was a minister.

Response

In relation to your request, I can confirm that the FDA wrote to the First Minister on 16 November 2021 and 21 December 2021; the First Minister responded on 30 November 2021 and 26 January 2022, respectively.

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 38(1)(b) (personal information), an exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) and section 36(2) of FOISA (actionable breach of confidence) apply to that information.

An exemption under section 38(1)(b) of FOISA applies to some of the information that you have requested. Section 38(1)(b) applies because it is personal data of a third party, for example names of individuals or other personal data 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.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers to be able to discuss, often in confidence, matters with external stakeholders such as trade unions on a range of issues.

Disclosing the content of the information from this correspondence, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. Stakeholders will be reluctant to participate in providing views if they believe their views are likely to be made public. This would significantly harm the Government's ability to carry out many aspects of its work and could adversely affect its ability to gather all of the advice and views it needs to make fully informed decisions.

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 allowing Ministers and officials a private space within which external stakeholders can offer views and advice as part of the process of exploring and refining the Government's position on a range of issues, until the Government as a whole can adopt policies or decisions that are sound and likely to be effective. There is also a public interest in maintaining the trust and confidence of external stakeholders such as trade unions.

This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence. Disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

An exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some of the information requested because it was obtained from or by individuals during the process or related to interviews with individuals.

Disclosure would constitute an actionable breach of confidence.  This is because the information is confidential, was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality, and unauthorised disclosure would be to the detriment of the person who provided the information. 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.   

The letters from FDA are withheld under the above exemptions.

Some of the information you have requested is attached to this letter.

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.

202200305233_Nov 2021 - redacted (002)

File type

2 page PDF

File size

1.0 MB

202200305233_Jan 2022 - redacted (002)

File type

2 page PDF

File size

202.3 kB