Infected Blood Inquiry correspondence excluding that to and from Inquiry Team: FOI release

You asked for ‘Copies of all digital internal correspondence concerning the Infected Blood Inquiry since 1st January 2018 to present day. 

Please note that internal correspondence excludes correspondence which has been directly sent to or received from the Infected Blood Inquiry Team.’

I enclose a copy of some of the information you requested at Annex B.

Some of the information you have requested is available online at the following weblinks:

• Some of the information provided within internal correspondence is copies of correspondence from or to the Infected Blood Inquiry which was released in response to your previous FOI request – see https://www.gov.scot/publications/foi-18-03401/  
• Letter from Sir Brian Langstaff to Paul Gray, Chief Executive NHS Scotland and Director-General for Health and Social Care – https://www.infectedbloodinquiry.org.uk/sites/default/files/2018-12-12%20-%20Second%20Letter%20to%20Chief%20Executive%20of%20NHS%20Scotland.pdf
• Consultation documents from the Inquiry regarding the Inquiry’s terms of reference –

https://www.infectedbloodinquiry.org.uk/sites/default/files/20180307-Infected-Blood-Inquiry-Consultation-Letter-.pdf

https://www.infectedbloodinquiry.org.uk/sites/default/files/2018-03-02-Consultation-on-the-Terms-of-Reference.pdf 

• Inquiry Chair’s letter to David Lidington regarding the draft terms of reference - https://www.infectedbloodinquiry.org.uk/sites/default/files/Letter-from-Chair-to-CDL-1.pdf

https://www.infectedbloodinquiry.org.uk/sites/default/files/Terms-of-Reference-Infected-Blood-Inquiry.pdf

https://www.infectedbloodinquiry.org.uk/sites/default/files/Summary-of-consultation-responses.pdf             

• Statement from the Inquiry regarding waiving legal professional privilege - https://www.infectedbloodinquiry.org.uk/news/inquiry-chair-welcomes-waiving-legal-privilege-department-health-and-mhra
• CMO letter of September 2016 regarding testing patients for hepatitis c - https://www.sehd.scot.nhs.uk/cmo/CMO(2016)17.pdf

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.  

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 exemptions under sections 37(1)(b)(i) and (ii) (for purposes of an inquiry), 30(b)(ii) (free and frank exchanges of views), 30(c) (prejudice to the effective conduct of public affairs), 36(1) (legal advice) 28(1) (relations within the UK) and 38(1)(b) (personal information) of FOISA apply to that information.  The reasons why those exemptions applies are explained in the Annex A (below) to this letter.

An exemption applies.

Exemptions under sections 37(1)(b)(i) and (ii) of FOISA apply to some the information you have requested.  The Infected Blood Inquiry is a statutory inquiry and these exemptions apply to information either produced for the Infected Blood Inquiry by the Scottish Government, such as draft statements or file lists, or to information produced by the Inquiry’s staff (and then circulated internally within the Scottish Government).  While much of this information will largely be shared with core participants in due course and may ultimately, if determined relevant, be published by the Inquiry, it is appropriate that the Inquiry team and the Scottish Government have a private space to finalise these documents to the Inquiry’s satisfaction and for the Inquiry and its chair then to be able to consider the information fully before drawing its own conclusions. 

These exemptions are 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 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, in this case, names and contact details of non-senior staff members and mobile phone numbers, names and personal email addresses of external stakeholders, 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 applies, subject to the public interest test.

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested.  This exemption applies because disclosure would be likely to inhibit substantially the free and frank exchange of views for the purposes of deliberation.  This exemption recognises the need for officials and in some cases Ministers to have a private space within which to discuss issues while the Scottish Government finalises its approach to the Inquiry.  Disclosing the content of these discussions on matters relating to the Scottish Government’s approach to the Inquiry will substantially inhibit such discussions in the future, because both officials will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly given these discussions are still ongoing and relate to sensitive issues regarding the Inquiry.

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, and to inform public debate. However, there is a greater public interest in allowing officials and Ministers a private space within which to communicate as part of the process of exploring and refining the Government’s approach to the Inquiry.  This private space is essential to enable options to be properly considered.  Premature disclosure is likely to undermine the full and frank discussion of issues between staff within the Scottish Government, which in turn will undermine the quality of the Scottish Government’s input into the Inquiry, which would not be in the public interest.  

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested.  Disclosing this information would substantially prejudice our ability to input effectively into the UK Inquiry because disclosing our internal considerations around the Scottish Government’s approach to legal input in particular into the Inquiry would significantly undermine our ability to participate on an equal footing to that of other participants.  In addition, releasing internal correspondence regarding a tender exercise for legal support which remains ongoing would be likely to significantly harm the Scottish Government’s ability to ensure it secures the best contractor to carry out this work. 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 Scottish Government’s ability to have a private space to agree its approach to responding to the Inquiry and ensuring that the Scottish Government is able conduct this aspect of its business effectively. 

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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 some public interest in release as part of open and transparent government, and to inform public debate.  However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

An exemption under section 28(1) of FOISA (relations within the UK) applies to some of the information requested.  This exemption applies because disclosure would, or would be likely to, prejudice substantially relations between the Scottish Government and the UK Government in relation to internal correspondence regarding certain correspondence with the UK Government about the Inquiry.  It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government and the UK Government. Disclosure of this information would mean that the UK Government is likely to be more reluctant to communicate as openly with the Scottish Government in future.

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, and to inform public debate.  However, there is a greater public interest in maintaining close working relationships between the Scottish Government and the UK Government, and in protecting the free exchange of information between the administrations about matters such as the Infected Blood Inquiry.  There is no public interest in disclosing information when that will damage relationships and disrupt future communications.