Correspondence relating to the former First Minister investigation and communications concerning the Permanent Secretary: FOI release

Information requested

You asked for:

1. Further to the existing replies to my earlier requests please list the Scottish Government meetings with external legal advisers relating to the investigation concerning Alex Salmond in July and August 2018 and the civil servants, government ministers, special advisers and any others at these meetings.

2. Please disclose any or all correspondence or communications with the Cabinet Office or any other UK or Scottish government department on the subject of the contracts and retirement date of Permanent Secretary Leslie Evans.

Response

1. Further to the existing replies to my earlier requests please list the Scottish Government meetings with external legal advisers relating to the investigation concerning Alex Salmond in July and August 2018 and the civil servants, government ministers, special advisers and any others at these meetings.

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 30(c) (substantial prejudice to effective conduct of public affairs) applies to that information.

The reasons why this exemption applies are explained in Annex A below.

20 August 2018 - Meeting with Christine O’Neill and [exempt information], [exempt information], and [exempt information].

21 August 2018 – Meeting with Christine O’Neill and [exempt information], and [exempt information].

22 August 2018 (2 meetings) – Christine O’Neill and [exempt information] and [exempt information]; and Christine O’Neill and [exempt information], [exempt information], and [exempt information].

2. Please disclose any or all correspondence or communications with the Cabinet Office or any other UK or Scottish government department on the subject of the contracts and retirement date of Permanent Secretary Leslie Evans.

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 38(1)(b) (personal information) apply to that information.

The reasons why these exemptions apply are explained in Annex B below.

ANNEX A
REASONS FOR NOT PROVIDING INFORMATION
An exemption applies, subject to the public interest test

An exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to all of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on the judicial review, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on this and other legal issues. 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, and to inform public debate. However, there is a greater public interest in enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

ANNEX B
REASONS FOR NOT PROVIDING INFORMATION
An exemption applies

An exemption under section 38(1) of FOISA (personal information), applies to the information requested because it is personal data of a third party, for example names of individuals or other personal data, and that information has been redacted or not disclosed. Disclosing it would contravene the data protection principles in Article 21 of the General Data Protection Regulation.

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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.