Ministerial code investigation: FOI release

Information requested

1) Did the SG communication with Mr Hamilton after the date at which I submitted FOI 202400400853, if so I request those communications?

2) Whether as a matter of historical fact did Mr Hamilton during his ministerial code investigation create any written, audio or electronic notes?

3) If Mr Hamilton did during his investigation create any such notes does he still retain them (for example written notes in a notepad which he still has) or have they been lost and/or destroyed by either him or the SG?

4) Any and all communications regarding the response to FOI 202400400853.

Response

In relation to your first, second and third requests, while our aim is to provide information, whenever possible, in this instance the Scottish Government does not have the information you have requested.

This is a formal notice under Section 17(1) FOISA that the Scottish Government does not have the information you have requested. Having conducted appropriate and proportionate searches for information in line with your requests, the Scottish Government holds no recorded information within the scope of your request.

Under FOISA we are required to give notice under section 17(1) when we do not hold the information to which the request relates. For the avoidance of doubt, we cannot confirm under FOISA whether notes were created as this information is not recorded but we can confirm, as we have in our previous responses to you on this topic, that at the time of your request, neither the Scottish Government nor Mr Hamilton on behalf of the Scottish Government held any such notes.

In relation to your fourth request, I enclose a copy 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 sections 30(b)(i) (free and frank provision of advice), 36(1) (confidentiality under legal proceedings) and 38(1)(a) and (b) (personal data of the requester and third party) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

ANNEX A

Section 30(b)(i) - Free and frank provision of advice

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 36(1) – Confidentiality

An exemption under section 36(1) of FOISA 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. 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 receive legal advice in confidence, like any other public or private organisation.

Section 38(1) (a) and (b) - Personal data of the requester and third party

An exemption under section 38(1) (a) and (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 202400405887 - Information released - Annex

File type

14 page PDF

File size

863.3 kB