Former Cabinet Secretary for Finance WhatsApp messages from ministerial position during the Covid 19 pandemic: FOI Review

Information requested

Orginal Request 202400422240

‘MSP Kate Forbes’ WhatsApp messages from her ministerial role during the COVID-19 pandemic’.

Response

I have now completed my review of our response to your request under the

Freedom of Information (Scotland) Act 2002 (FOISA) for ‘MSP Kate Forbes’ WhatsApp messages from her ministerial role during the COVID-19 pandemic’.

I uphold your review and complaint that the Scottish Government did not respond to you within the required time scale, please accept our apologies for not replying to your original request. We will ensure that this case is used as a learning point for staff when dealing with these type of requests, and to ensure staff continue to understand the importance of responding timeously to requests.

Please see attached a copy of the information you have requested enclosed in the annex. However, 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 the following sections of FOISA applies to that information. The reason why each exemption applies is also explained below.

Section 28(1) – Relations with the UK
Section 29(1)(b) – Ministerial Communications
Section 29(1)(d) – Operation of any ministerial private office
Section 30(a) – Convention of collective responsibility of Scottish Ministers
Section 30(b)(ii) – Free and frank exchange of views
Section 38(1)(b) – Personal information

The reasons why exemptions apply are set out below.

Section 28(1) – Relations within the UK
An exemption under section 28(1) of FOISA (relations within the UK) 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. 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 good relations between the Scottish Government and the UK Government. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

Section 29(1)(b) – Ministerial communications

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it is 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 both issues and policy positions can be explored and refined so that Ministers can reach a decision 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. Disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process.

Section 29(1)(d) – Operation of any ministerial private office

An exemption under section 29(1)(d) of FOISA (Ministerial private office) applies to some of the information requested because it relates to the operation of any Ministerial private office.

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, to ensure private offices operate efficiently and to inform public debate.

However, there is a greater public interest in allowing the ministers a private space and the necessary time to engage with their private office to receive free and frank exchange of advice and views. It also enables ministers the private space and time to work on a wide range of ministerial duties and decisions, allowing for all options to be properly considered, to enable the effective operation of private office, and to manage ministers’ time in the most efficient way.

Section 30(a) - Convention of collective responsibility of Scottish Ministers

An exemption under section 30(a) of FOISA (convention of collective responsibility of Scottish Ministers) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, prejudice substantially the convention of the collective responsibility of Scottish Ministers for the Scottish Government’s decision on Cabinet business on external affairs. Government in Scotland, as in the rest of the UK, has long worked under the convention that Ministers are collectively responsible for decisions and their delivery. Collective responsibility requires collective discretion, and ensures that Ministers can express their views frankly in internal discussion of an issue while maintaining a united front once decisions have been reached. Disclosing communications between individual Ministers and/or Cabinet papers which record their views would prejudice substantially the maintenance of the convention. 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 collective responsibility for the Scottish Government’s decision on various policy related decisions. Disclosure of these internal discussions between Ministers would be likely to have the effect of undermining the Government’s position on cabinet issues, and thus the effectiveness of the decision, which would not be in the public interest.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. 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 the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on dealing with a number of different issues, including the Covid-19 pandemic, and the budget, will substantially inhibit such discussions in the 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 allowing Ministers and officials a private space within which to explore and refine the Government’s position on a number of topics, such as those listed above. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. 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.

Section 38(1)(b) – applicant has asked for personal data of a third party

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, for example names and contact details for junior members of staff or 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 Review 202400426539 - Information Released - Annex

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