James Hamilton correspondence, WhatsApp review, Covid inquiry and Hugh Pennington Correspondence: FOI release

Information requested

1. All correspondence received and sent by the Scottish Government, including internal, notes from any meetings, minutes and briefings about the chief nursing officer retiring, from between November 1 2023 and the date of this FOI.

2. All correspondence received and sent by the Scottish Government, including internal, notes from any meetings, minutes and briefings about or from Hugh Pennington, from between March 2020 and the date of this FOI.

3. Could you supply all internal correspondence surrounding the decision to block the release of James Hamilton's investigation into Nicola Sturgeon as reported on here:

https://www.heraldscotland.com/news/24069249.snp-reject-bid-publish-james-hamilton-code-probeevidence/

Could you also supply any internal or external advice the government received about the decision to block the unredacted release following the Information Commissioner court case?

4. Could you supply all progress made in Humza Yousaf's external review in WhatsApp use, including all planning so far and correspondence/documentation to back it up? As reported on here: https://www.scotsman.com/news/politics/humza-yousaf-announces-external-review-into-scottish-government-whatsapp-use-4492613 Digital?

5. Could you supply all minutes/notes from the Covid Inquiries Response Directorate meetings that have been held so far this year?

6. Could you supply every written update provided to ministers/officials about work ongoing to support both Covid-19 inquiries, which JP Marks promised in a letter to Humza Yousaf from this year so far?

Response

I enclose copies of some of the information you have requested.

We are unable to provide some of the information you have requested because exemptions under section 38(1)(b), section 30(b)(i), section 30(b)(ii), section 36(1), section 25(1), section 27(1) and section 30(c) applies. The reason why these exemptions apply is explained below.

Question 1

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA applies to some of the information you have requested due to the information containing personal data of individuals 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.

Question 2

Section 30(b)(i)

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice for the purposes of deliberation. The exemption recognises the need for Ministers to have a private space within which to seek advice from officials before reaching the settled public position. Disclosing the content of free and frank briefing material will substantially inhibit such advice being provided in the future, particularly because these discussions relate to a sensitive issue.

Section 30(b)(ii)

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises that disclosing the content of free and frank discussions between Ministers and Officials for both the Scottish and UK Covid-19 Inquiries will substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and these discussions relate to sensitive issues.

These exemptions are 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 exemptions. 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 free and frank advice and views to Ministers. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice in the future, which would not be in the public interest.

Question 3

Section 30(b)(i)

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice for the purposes of deliberation. The exemption recognises the need for Ministers to have a private space within which to seek advice from officials before reaching the settled public position. Disclosing the content of free and frank briefing material will substantially inhibit such advice being provided in the future, particularly because these discussions relate to a sensitive issue.

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 exemptions. 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 free and frank advice and views to Ministers. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice in the future, which would not be in the public interest. 

Section 36(1)

An exemption under section 36(1) of FOISA applies to some of the information requested because it is covered by the Scottish Ministers’ 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. As before, 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 seek and receive legal advice in confidence, like any other public or private organisation.

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA applies to some of the information you have requested due to the information containing personal data of individuals 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.

Question 4

Some of the information you have requested is available from the published news release article. 

Please find attached link. Former data commissioner to lead external review - gov.scot (www.gov.scot)

Section 25(1)

We do not have to give you information which 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.

Section 27(1)

An exemption under section 27(1) of FOISA applies to the information requested because we intend to publish that information on the Scottish Government website within 12 weeks of the date of your request. We consider that it is reasonable to withhold the information until that date, rather than release this information before the planned publication date.

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 because this will be met by our planned publication. In the meantime, there is a greater public interest in taking the time necessary to ensure the information has been properly collated and checked before it is published as planned. We also see no public interest in disrupting our programme of work to release the information ahead of the intended publication date. 

Question 5

We have interpreted your request referencing the Permanent Secretary’s letter of 29 December 2023 introducing weekly review meetings with senior colleagues in the Covid Inquiries Response Directorate.

I enclose a copy of some of the information you have requested.

Section 30(b)(i)

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice for the purposes of deliberation. The exemption recognises the need for Ministers to have a private space within which to seek advice from officials before reaching the settled public position. Disclosing the content of free and frank briefing material will substantially inhibit such advice being provided in the future, particularly because these discussions relate to a sensitive issue.

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 exemptions. 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 free and frank advice and views to Ministers. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice in the future, which would not be in the public interest.

Section 30(c)

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 could 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 process and ensuring that the Scottish Government is able conduct this aspect of its business effectively.

Section 36(1)

An exemption under section 36(1) of FOISA applies to some of the information requested because it is covered by the Scottish Ministers’ 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. As before, 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 seek and receive legal advice in confidence, like any other public or private organisation.

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA applies to some of the information you have requested due to the information containing personal data of individuals 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.

Question 6

We have interpreted your request referencing the Permanent Secretary’s letter of 29 December 2023 requesting monthly written updates on work to support both Covid-19 Inquiries. Two monthly updates were provided to Ministers during the time period, and I enclose copies of some of the information you have requested. 

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 section 30(b)(i) (free and frank provision of advice) and section 38 (1)(b) apply. The reasons why these exemptions apply are explained below.

Section 30(b)(i)

An exemption under section 30(b)(i) of FOISA (free and frank advice) 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 for the purposes of deliberation. The exemption recognises the need for Ministers to have a private space within which to seek advice from officials before reaching the settled public position. Disclosing the content of free and frank briefing material will substantially inhibit such advice being provided in the future, particularly because these discussions relate to a sensitive issue.

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 exemptions. 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 free and frank advice and views to Ministers. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice in the future, which would not be in the public interest.

Section 38(1)(b) –personal data of a third party

An exemption under section 38(1)(b) of FOISA applies to some of the information you have requested due to the information containing personal data of individuals 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. 

About FOI

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.

FOI 202400403162 - Information Released - Annex

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