Publication - FOI/EIR release

Retention of correspondence relating to UK Covid Inquiry: FOI release

Published: 4 September 2024
Directorate: Covid Inquiries Response Directorate
Topic: Coronavirus (COVID-19) in Scotland, Public sector
FOI reference: FOI/202400401815
Date received: 28 February 2024
Date responded: 27 March 2024

Information request and response under the Freedom of Information (Scotland) Act 2002

Information requested

Could you supply all emails received by the Scottish Government from the UK Covid Inquiry and the UK Government about retaining all correspondence for the inquiry?
Could you supply all internal discussions, notes and briefings about Scottish Government ministers using private emails for government business, between October 1 2023 and the date of this FOI?
Could you supply all correspondence sent and received by the permanent secretary about the UK Covid Inquiry between January 1 2024 and the date of this FOI?
What progress has been made with this investigation and could you supply the outcome of it and how the investigation unfolded: https://www.heraldscotland.com/news/24091241.humza-yousaf-urgently-looking-missing-gold-command-covid-minutes/
Did Nicola Sturgeon hand in her phone to the Scottish Government to get it wiped before giving it to a family member: https://www.bbc.co.uk/news/articles/c131k844mevo.amp
Who within the Scottish government made the final decision to update the records management system in 2021? What were the reasons given for this?

Response

Question 1

I enclose a copy of the information you requested

10 June 2021 Letter from Director General Propriety and Ethics to Permanent Secretary
08 February 2022 Letter from Director General Propriety and Ethics to Permanent Secretary
20 October 2022 Letter from Director General Propriety and Ethics to Permanent Secretary

Correspondence between the UK Inquiry (UKI) and the UK Government (UKG) Director General, Propriety and Ethics relevant to the February 2022 and October 2022 correspondence you have requested have been published on the UK Inquiry website, https://covid19.public-inquiry.uk/documents/

February 2022

20 January 2022 – UKI to UKG letter prompting February 2022 correspondence with Permanent Secretary: https://covid19.public-inquiry.uk/documents/letter-to-the-director-general-propriety-and-ethics-at-the- cabinet-office-2/

October 2022

11 October 2022 – UKI to UKG letter prompting October 2022 correspondence with Permanent Secretary: https://covid19.public-inquiry.uk/documents/letter-to-director-general- propriety-and-ethics-at-the-cabinet- office/

Question 2
I enclose a copy of some of the information you requested which is within the attached Annex (A).

Some of the information you have requested is available on the Scottish Government’s website: the Records Management Policy, the Mobile messaging apps policy, and within a previous FOI response 202300383766. Under section 25(1) of FOISA, we do not have to provide you with information if it is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.

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 s.29(1)(a) (policy formulation), s.30(b) (prejudice to effective conduct of public affairs), and s.38(1)(b) (personal information) of FOISA applies to some of the information.

An exemption under section 29(1)(b) (Ministerial Communications) of FOISA applies to some of the information requested because it relates to communications between Scottish Ministers.

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 Ministers a private space within which issues/policy positions can be explored and refined, until the Government as a whole can reach a decision/adopt a policy that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy/decision making process.

An exemption under sections 30(b)(i)(Free and Frank Provision of advice) and section 30(b)(ii) (free and frank exchange of views) of FOISA applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers/other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice in relation to this specific question will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken.

We have considered if the public interest in disclosing the information in each of these instances outweighs the public interest in applying the exemptions and found that the public interest lies largely in favour of releasing the information, but in some instances we have found that it lies in favour of upholding the exemptions so that officials can provide free and frank advice and views to Ministers as part of the process of exploring and refining the Government’s policy position to ensure that it is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

An exemption under section 38(1)(b) (personal information) of FOISA (personal information) has been applied to some of the information requested because it is personal data of a third party, i.e. the names and contact details of individuals, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.

Question 3

I enclose a copy of some of the information you requested which is contained within Annex B and Annex C of this document. 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 these exemptions apply are explained below.

An exemption under section 28(1) (Prejudice substantially relations between administrations in the UK) of FOISA 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/UK Covid -19 Public 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, the UK Government and the other devolved administrations. Disclosure of this information will mean that the UK Government/UK Covid Inquiry is likely to be more reluctant to communicate as frequently and 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 to ensure that we keep each other fully and regularly informed about matters of mutual interest. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

An exemption under section 29(1)(b) (Ministerial Communications) of FOISA applies to some of the information requested because it relates to communications between Scottish Ministers.

This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers/other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice in relation to this specific question will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken. 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 a private space within which officials can provide full and frank advice to Ministers/other officials, as part of the process of exploring and refining the Government’s position on the UK Covid-19 Public Inquiry. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

In addition, an exemption under section 30(c) (Otherwise prejudice effective conduct of public affairs) of FOISA applies to some of the information you have requested. Information is exempt if disclosure would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs. We consider that the release of some of the information you have requested would negatively impact the effective conduct of the UK Covid-19 Inquiry and substantially prejudice ongoing independent investigations.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this part of your request, 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. As such, whilst details of any such communications with the UK Covid-19 Inquiry may be of interest to the public, in the short term it is in the interest of the public for this material to remain confidential to allow both Inquiries to successfully formulate lessons that we can learn from for future pandemics.

An exemption under section 36(1) (Confidentiality in legal proceedings) of FOISA applies to some of the information requested. This is 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 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 seek and receive legal advice in confidence, like any other public or private organisation.

An exemption under section 37(1)(b)(i) (document lodged with a person conducting an inquiry or arbitration) and section 37(1)(b)(ii) (document created by a person conducting an inquiry or arbitration) apply to some of the information you request. The UK Covid-19 Inquiry is an ongoing public inquiry therefore, the release of information relating to the investigation of the inquiry would negatively impact the effective conduct of the inquiry and substantially prejudice ongoing independent investigations. 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.

Additionally, some sections of correspondence and attachments have been redacted because the information within them does not fall within the scope of your request.

Question 4

The First Minister committed during First Minister’s Questions on 1 February 2024 to urgently examine and explore matters related to “Gold Command Meeting Minutes”. As set out in the Scottish Government’s closing statement for Module 2A of the UK Covid-19 Inquiry:

“Gold” was not a formally constituted group within the Scottish Government. Rather, “Gold” was an informal label for discussions convened for Ministers to take stock with advisers and officials of work being taken forward preparatory to formal decision-making.

The First Minister’s statement resulted in the Scottish Government commissioning further urgent work to undertake additional searches and documentation checks of all Scottish Government repositories to ensure the Scottish Government has provided as full a record as possible of “Gold” meetings to both the UK and Scottish Covid-19 Inquiries. As at 28 February 2024, that work was ongoing and had not concluded.

Question 5

This was not a Scottish Government issued mobile phone. The Scottish Government does not clear non Scottish Government devices of any minister and/or civil servant. This would be the responsibility of the device owner. Therefore, this is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

Question 6

In June 2021, the Scottish Government Executive Team (ET) agreed to consider whether further guidance was required on the use of Whatsapp, which saw the development of the Scottish Government Mobile messaging apps - usage and policy in November 2021. In June 2021, the ET comprised of the following individuals:

Leslie Evans Permanent Secretary
Paul Johnson DG Communities
Lesley Fraser DG Corporate
Liz Ditchburn DG Economy
Joe Griffin DG Education & Justice
Caroline Lamb DG Health & Social Care
Alyson Stafford DG Scottish Exchequer
Ken Thomson DG Strategy and External Affairs
Ruaraidh Macniven Solicitor to the Scottish Government
Andrew Bruce Director of Communications & Ministerial Support
Jackie McAllister Chief Financial Officer
Nicola Richards Director People Directorate
Madhu Malhotra Director Equality & Human Rights

In line with the Scottish Government’s overarching Records Management Policy, this complementary guidance was introduced by the ET to make clear that mobile messaging does not change individual civil servants’ responsibility to maintain complete and comprehensive records of key conversations and decisions, to be saved into the Electronic Records and Document Management system (eRDM).

The action was completed as directed by the Executive Team. Andrew Bruce, in consultaion with colleagues in SG Digital Directorate, agreed that the extant guidance should be updated to provide revised guidance for ‘personal messaging apps’. This was taken forward by Dave Watson, SG Chief Information Officer [CIO].

As Chair of the Information Governance Delivery Board, CIO agreed to take the guidance document through that board, which included colleagues fromSG Legal Directorate, Communications, Ministerial Private Offices, Data Protection Officer, Freedom of Information Unit, People Directorate Cyber Security and Internal Audit teams.

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