Number of complaints made against Scottish Ministers: FOI release

Information requested

1) Number of complaints within a complaints policy made about Scottish Government ministers in 2019, 2020, 2021, and 2022 thus far.

2) If any, can you please down break these complaints by (i) who the complaint was made against, (ii) the reason for the complaint, (iii) the date the complaint was lodged, and (iv) who lodged the complaint.

Response

1) In relation to your first request, I can confirm that one complaint was made during the period mentioned in your request.

2) In relation to your second request, 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 35(1)(g) (prejudice to public authority in the exercise of its functions), section 38(1)(b) (personal information) and section 36(2) (actionable breach of confidence) apply to that information.

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. We also consider that persons complained about are less likely to cooperate voluntarily with the process if they apprehend that information provided by them in the context of the process that applied at the time is likely to be disclosed outwith that process. This would substantially prejudice the Scottish Government’s ability to process such complaints, and so would constitute substantial prejudice for the purposes of the exemption.

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 for 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 that persons complained about are not deterred from cooperating voluntarily, 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.

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 36(2) of FOISA applies to some of the information requested because it was obtained by witnesses during the process or related to interviews with witnesses. 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.

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