Communications on Ministerial Code investigation into former First Minister: FOI release

Information requested

Communications between the Scottish Government (Ministers, Civil Servants, SPADs and all other SG employees) and all individuals who gave evidence to James Hamilton's Ministerial Code investigation into Nicola Sturgeon (e.g. Geoff Aberdein, Alex Salmond, Liz Lloyd, Nicola Sturgeon, David Hamilton etc) referencing/regarding the creation of the Scottish Governments revised FOI response (202100161098) following the Governments defeat in Court of Session.

Response

In relation to your 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(c) (substantial prejudice to the effective conduct of public affairs), 36(1) (confidentiality under legal proceedings) and 38(1)(b) (third party personal data) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Section 30(c) (substantial prejudice to the effective conduct of public affairs)

An exemption under section 30(c) (effective conduct of public affairs) applies to some information submitted to Mr Hamilton as part of his investigation in respect of the First Minister’s self-referral which was carried out in accordance with paragraph 1.7 of the Scottish Ministerial Code.

We consider that disclosure of the evidence which was submitted to Mr Hamilton in confidence and on the understanding that material would not be released other than as part of Mr Hamilton’s report would be likely to deter individuals from providing free and frank evidence in such investigations in future. In our view, disclosure would be likely to undermine the process whereby such investigations are carried out, and it is likely that this would affect the independent advisers’ ability to deal with referrals and produce reports in terms of the Scottish Ministerial Code in future. As set out in Gerry Hendricks’ letter to you of 9 June 2021, there is a credible risk that officials, particularly those in more junior grades, may feel inhibited in contributing to such investigations if they believe their evidence would be disclosed, other than through the final report prepared by the independent advisers. I support the view, expressed in the response, that this would substantially prejudice the effective conduct of investigations under the Ministerial Code.

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 transparency, particularly in relation to the work that the independent advisers undertake, in evidencing that their investigations are carried out objectively and independently, and in understanding fully the processes used by the independent advisers when a referral is made to them.

However, we consider that there is a greater public interest in allowing the independent advisers to obtain all of the information that they require in order to carry out their investigations, before enabling them to consider all of that information and draw conclusions to inform their reports, without that part of the process necessarily being put into the public domain. We consider that Scottish public authorities and their staff (principally, but not exclusively, the Scottish Government) would be far more reticent in participating in such investigations in the future if evidence and submissions were to be disclosed before the independent adviser had the opportunity to prepare their report. In short, there is a greater public interest in ensuring that independent advisers can fulfil their functions under the Scottish Ministerial Code effectively and that future referrals are not prejudiced. We also take the view that the public interest is, at least in part, served by the publication of the independent adviser’s report on completion of the investigation.

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 202400406010 - Information Released - Documents 1-4

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8 page PDF

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