Former First Minister complaints: FOI Review

Information requested

1. dates, times and locations of the three publicly stated meetings at which the First Minister met Mr Alex Salmond in relation to complaints against him of inappropriate behaviour towards Scottish Government staff

2. at whose request or initiative each of those meetings referred to above were arranged and if Scottish Government staff were involved in any way in their arrangement, during them or in their follow up

3. the capacity Ms Sturgeon met Mr Salmond in the three meetings referred to above and the name and role of anyone else present on each occasion

4. if any minutes or other notes were taken at the meetings referred to above and if so, information  contained in those documents except for any information which compromises the privacy of alleged victims or ongoing legal proceedings

5. information contained in any correspondence (including to or from the First Minister and Mr Salmond) arising from the meetings referred to above except for any information which compromises the privacy of alleged victims or ongoing legal proceedings 

6. whether the meetings referred to above involved any departure from normal policy or procedure in terms of minuting or presence of Scottish Government staff and if so, at whose direction this was

7. if there have been any recorded meetings besides the three referred to above between the First Minister and Mr Salmond during 2018 on any subject and if so their dates, times, locations, matters discussed and information contained in any minutes, associated notes or correspondence

8. information contained in any other correspondence between the First Minister and Mr Salmond or issued to Mr Salmond on the First Minister's behalf during 2018

9. information contained in correspondence minutes, meeting notes or any record of contact including meeting locations where known between Mr Geoff Aberdein and the current First Minister Nicola Sturgeon on or around 29th March 2018 concerning inappropriate behaviour by Alex Salmond towards Scottish Government staff or any other women removing names of any alleged complainers or victims where applicable

10. information contained in correspondence, minutes, meeting notes or any record of contact including meeting locations where known between Mr Geoff Aberdein and Scottish Government Ministers or staff concerning inappropriate behaviour by Alex Salmond towards Scottish Government staff or any other women removing names of any alleged complainers or victims where applicable 

11. information contained in correspondence, minutes, meeting notes or any record of contact including meeting locations where known between Mr Chris Birt and Scottish Government Ministers or staff concerning inappropriate behaviour by Alex Salmond towards Scottish Government staff or any other women removing names of any alleged complainers or victims where applicable 

12. information contained in correspondence or any record concerning a change of policy or practice whereby female members of Scottish Government staff were not to be alone with Alex Salmond and who would have been privy to this information.

 

Response

In your request for a review, you expressed dissatisfaction with the following aspects of our handling of your request, as follows:

a) in relation to parts 1, 2 and 5 of your request, you advise that you do not regard the information disclosed to you as constituting full disclosure in terms of FOISA

b) in relation to part 12 of your request, you indicate that you are dissatisfied with our decision that all of the information within scope is exempt information in terms of sections 26(c) (prohibitions on disclosure: contempt of court) and 38(1)(b) (personal information) of FOISA

c) in relation to the remaining parts of your request, you express dissatisfaction with our formal notice under section 17(1) of FOISA that the Scottish Government does not have any of the information sought, and ask for confirmation that the requested information has not been lost or destroyed in contravention of FOISA

d) the time taken to respond to your request.
I have reviewed our original decision against the requests in your email of 3 July (outlined at points (a) to (d) above above) and have reached the following conclusions. Having completed the review, I conclude that the original decision should be confirmed with modifications, for the reasons set out below.

Part (a) of your review request
This relates to parts 1, 2 and 5 of your request of 24 March. In our response to you, we advised that some of the information that you had requested was otherwise accessible to you and so we applied the exemption in section 25(1) of FOISA to that information, signposting you to where we considered the information to be reasonably accessible. So far as the information requested was not otherwise accessible to you by accessing the Official Report of the Scottish Parliament, we gave notice under section 17(1) of FOISA that we did not hold the information requested. 

In your request for review, you indicate that you do not consider that this constitutes full disclosure for the purposes of FOISA. Accordingly, I have interpreted this as an expression of dissatisfaction with the steps that we took to identify the information falling within the scope of these parts of your request. I have therefore re-examined the searches that were undertaken to determine what information fell within scope in order to ascertain whether the Scottish Ministers hold any further information. I am satisfied, having undertaken my review, that the searches undertaken were adequate and proportionate, and that the Scottish Ministers hold no recorded information which goes beyond the information publicly available in the weblinks provided in our letter of 19 June. I have therefore concluded that we were correct to apply the exemption in section 25(1) of FOISA in respect of the information that we hold, and that we were correct to tell you that otherwise the information requested was not held.

Accordingly, I have upheld the aspects of our original decision to which this part of your review request relates without modification.

Part (b) of your review request
This relates to part 12 of your request of 24 March. Part 12 of your request itself contains two requests for information, as we noted in our response to you. The first part was for “information contained in correspondence or any record concerning a change of policy or practice whereby female members of Scottish Government staff were not to be alone with Alex Salmond”, and the second part was for information about those who would have been privy to such information. We applied the exemption in section 26(c) (prohibitions on disclosure: contempt of court) of FOISA to the first part of this request, and the exemption in section 38(1) (b) (personal information) of FOISA to the second part.

In view of your dissatisfaction about the way in which these exemptions were applied, I have reconsidered their application in the course of carrying out my review. I have concluded that we were correct to apply each of these exemptions to the information to which they were applied, for the reasons set out below. However, I consider that we could have explained more clearly why we concluded that each exemption applies in the way it does. Accordingly, I have provided these further explanations below.

Part 12(1): application of section 26(c) of FOISA

You observe that you are not seeking disclosure of any information which identifies complainers or alleged victims, and comment that this information is the information covered by the order under the Contempt of Court Act 1981 referred to in our response to you. As you note, all of the information within the scope of this part of your request has been withheld under section 26(c) of FOISA. The Scottish Government was not a party to the criminal proceedings. However, the Scottish Government recognises that it may hold information which might identify some of those complainers because of statements in the public domain which indicate that some complainers were SG officials. In determining whether there is a realistic prospect of identification of any complainers, account may also be taken of information in the hands of third parties (not necessarily the requester).

On that basis, I have carefully reconsidered the entirety of the information falling within the scope of this part of your request, and in particular I have considered whether it would be possible to disclose the information that you have requested while withholding only information that may directly identify complainers who are the subjects of an order made under the Contempt of Court Act 1981.

I have concluded that it would be not be possible to redact the information requested in such a way as to ensure that there would be no realistic prospect of identifying any such complainers. Given the information that is already in the public domain, I consider that there is a realistic prospect that third parties could seek to combine the information that you have requested with other readily-accessible information and thereby could identify the complainers.

Accordingly, I consider that the disclosure of the information you have requested in this part of your request could breach the order made under the Contempt of Court Act 1981 in the criminal proceedings with the result that the entirety of this information is exempt from disclosure by virtue of section 26(c) of FOISA. As noted in our original response, 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.

You may wish to be aware the Scottish Information Commissioner issued a decision in August 2019 on a related matter: Decision 125/2019. In that case, the requester asked for anonymised complaints made against Mr Salmond, and the Commissioner upheld our submissions that it would be impossible to anonymise that information (and so we were entitled to withhold it in its entirety in reliance on section 26(c) of FOISA). The Commissioner’s analysis is at paragraphs 19 to 31 of the Decision.

Part 12(2): application of section 38(1) (b) of FOISA

The second part of part 12 of your request asks for information about those who would have been privy to the information within the scope of the first part.

I have accordingly reviewed the recorded information held by the Scottish Ministers about who was privy to the information within the scope of the first part of part 12 of your request. I consider that all of the information within scope of the second part relates to one or more identifiable living individuals, and so it is personal data in terms of section 3(2) of the Data Protection Act 2018.

Personal data is exempt information under section 38(1) (b) of FOISA if its disclosure would (among other things) 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. In this case, the personal data includes the names of Scottish Government officials in grades below Senior Civil Service level. The Scottish Government considers that as a general principle officials in these grades would not generally be considered to be of sufficient seniority or to have a sufficient public profile so as to make processing their personal data in this way fair: Article 5(1) (a) of the GDPR requires that “personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”. Accordingly, I have concluded that disclosing this information would contravene the data protection principles, and so it is exempt information under section 38(1) (b) of FOISA. As noted in our original response, 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. 

Accordingly, I have upheld the aspects of our original decision to which this part of your review request relates with modifications, in order to provide clearer explanations for applying these exemptions. These explanations are set out above.

Part (c) of your review request

This relates to the way in which we applied section 17(1) (information not held) of FOISA to all of the other points in your request of 24 March. As noted above, we applied section 17(1) in part to parts 1, 2, 3 and 5 of your request (so far as not otherwise dealt with under section 25(1)). We also applied it in its entirety to points 4 and 6 to 11 of your request of 24 March.
In your request for review, you indicate that you consider that this response is unconvincing.
Accordingly, I have interpreted this as an expression of dissatisfaction with the steps that we took to identify the information falling within the scope of these parts of your request. I have therefore carefully considered the searches that were undertaken to ascertain whether the Scottish Ministers held any of the recorded information that you requested in relation to those points.
With one exception in relation to part 11 of your request (which is discussed below), I am satisfied that the searches undertaken were adequate and proportionate in order to establish what information, if any, was held. Accordingly, I have ascertained that the response to your original request was correct in giving you a formal notification under section 17(1) of FOISA that the Scottish Government does not have the information you had requested, except in relation to part 11.
However, I have concluded that it would have been good practice to explain to you why we did not hold the information that you requested, and I apologise that we did not do so. The Scottish Ministers do not hold the information requested for the following reasons:

• insofar as our section 17(1) notice relates to the first six parts of your requests, as stated by the First Minister in response to questions at First Minister’s Questions on 10 January, the meetings referred to were not government meetings;
• in relation to parts 7 and 8, we hold no recorded information about whether such meetings took place or whether any such correspondence was issued;
• in relation to parts 9 and 10, we hold no recorded information about any contact between Mr Geoff Aberdein and the current First Minister Nicola Sturgeon on or around 29th March 2018, or about contact between Mr Geoff Aberdein and Scottish Government Ministers or staff concerning inappropriate behaviour by Alex Salmond towards Scottish Government staff or any other women.

Part 11 of your original request
At point 11 of your original request of 24 March you asked for:
information contained in correspondence, minutes, meeting notes or any record of contact including meeting locations where known between Mr Chris Birt and Scottish Government Ministers or staff concerning inappropriate behaviour by Alex Salmond towards Scottish Government staff or any other women removing names of any alleged complainers or victims where applicable.

We indicated that we did not hold any information falling within the scope of this part of your request.

Having reviewed the searches undertaken, as noted above, I have concluded that our response to this part of your request was incorrect and that the Scottish Ministers did hold information falling within its  scope because the information identified under point 12 of your request is also relevant to point 11 of your request. I apologise for this oversight.

As a result, I have concluded that our response in relation to part 11 of your request should be substituted as follows:

With regard to part 11 of your request, in this instance we are unable to provide the information you have requested because an exemption under section 26(c) of FOISA (prohibitions on disclosure: 
contempt of court) applies to that information. This exemption applies because disclosure of the information you have requested in this part of your request might lead to the identification of complainers who are subject to an order made under the Contempt of Court Act 1981. The order was made by the court during the criminal proceedings to which the Scottish Government was not a party and the information requested is therefore exempt from disclosure by virtue of section 26(c) of 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.
I have noted that you are not seeking disclosure of any information which identifies complainers or alleged victims in this case. However, as noted above in respect of part (b) of your review request, the Scottish Government recognises that it may hold information which could identify some of those complainers because of statements in the public domain which indicate that some complainers were SG officials. In determining whether there is a realistic prospect of identification of any complainers, account may also be taken of information in the hands of third parties (not necessarily the requester).

I have concluded that it would be not be possible to redact the information requested in such a way as to ensure that there would be no realistic prospect of identifying any such complainers. Given the information that is already in the public domain, I consider that there is a realistic prospect that third parties could seek to combine the information that you have requested with other readily-accessible information and thereby could identify the complainers.

Accordingly, I consider that the disclosure of the information you have requested in this part of your request could breach the order made under the Contempt of Court Act 1981 in the criminal proceedings with the result that the entirety of this information is exempt from disclosure by virtue of section 26(c) of FOISA.

Accordingly, I have upheld the aspects of our original decision to which this part of your review request relates with modifications, in order to:

• explain why the information requested was not held
• substitute a new decision in relation to part 11 of your request.
• (not necessarily the requester).

Part (d) of your review request
I have carefully considered the time taken to respond to your request for information, and I would like to take this opportunity to apologise for the length of time taken to respond to your original request. The main factor for that delay was the need for relevant searches to be undertaken by a number of individuals who, very shortly after receipt of your request of 24 March, were necessarily diverted away from their usual roles in order to support the Scottish Government’s response to the COVID-19 emergency. The ability of individuals to undertake the appropriate searches continued to be constrained by their need to prioritise their focus on COVID-19 and this led to the unusual and regrettable length of time taken to respond to your request. We should have explained this to you and offered you this apology in our response to your original request, and I regret that we did not do so. 

About FOI

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