Director-General Corporate WhatsApp messages during the Covid 19 pandemic: FOI release

Information requested

The WhatsApp messages of the current Director General Corporate, Lesley Fraser, during the Covid-19 pandemic.

Response

I have taken the period of your request to apply from 21 January 2020 when the World Health Organisation published its ‘Novel Coronavirus (2019-nCoV) Situation Report, up until 30 April 2022 when the then remaining Covid-19 restrictions were lifted in
Scotland.

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 29(1)(a) (formulation or development of government policy), Section 30(b)(i) (free and frank provision of advice), Section 30(b)(ii) (free and frank exchange of views), Section 30(c) (otherwise prejudice effective conduct of public affairs), and Section 38(1)(b) (personal information) of FOISA apply to that information. The reasons why those exemptions apply are explained below.

Section 29(1)(a) – formulation or development of government policy

An exemption under section 29(1)(a) (formulation or development of government policy) of FOISA applies to some of the information requested because it relates to communications between officials regarding the formulation of government policy on the Scottish Government’s response to the pandemic.

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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the formulation of government policy in response to the Covid-19 pandemic will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development. Furthermore, those discussions are under the independent investigation by the Scottish and UK Covid-19 Inquiries.

Section 30(b)(i) and section 30(b)(ii) free and frank provision of advice and free and frank exchange of views for the purposes of deliberation

An exemption under Section 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 because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and the free and frank exchange of views for the purposes of deliberation. These exemptions recognise the need for officials to have a private space within which to provide free and frank advice and exchange of views to other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice and the free and frank exchange of views for the purposes of deliberation regarding the Scottish Government’s response to the pandemic, which are currently under the independent investigation by the Scottish and UK Covid-19 Inquiries, will substantially inhibit the provision of such advice in the future, particularly because the Scottish and UK Covid-19 Inquiries’ investigations are still ongoing and the release of matters currently under investigation by those inquiries is likely to cause harm to the ability of either inquiry to conduct its investigations as effectively and thoroughly as required under its terms of reference. For these reasons, I have concluded that the exemption applies.

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 other officials as part of the process of exploring and refining the Government’s policy in response to the pandemic. 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 officials, which in turn will undermine the quality of the Scottish Government’s policy and decision making, which would not be in the public interest.

Section 30(c) - prejudice effective conduct of public affairs

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. As the Scottish and UK Covid-19 Inquiries are in the midst of their investigations and currently scrutinising Ms Fraser’s WhatsApp messages, disclosure of some of this information would significantly harm and could adversely affect the Inquiries’ ability to carry out their specific, focused statutory duties, under the Inquiries Act 2005, in relation to public Inquiries.

This exemption applies because disclosing the content of discussions between officials about the internal reorganisation of the Civil Service and reprioritisation of projects to meet the needs of an urgent crisis (in this case the pandemic response) will substantially inhibit those discussions during future crisis. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

This exemption also applies because revealing the source of the Scottish Government’s legal advice on the response to the pandemic would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on formulating policy and advising ministers on highly complex and fast moving issues to protect lives during a health crisis. This would 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, and to inform public debate. However, there is a greater public interest in protecting the space where officials discuss how the Civil Service can adapt its processes and structures to meet the needs of responding to a significant crisis, particularly while this information is under the independent investigation of the Scottish and UK Covid-19 Inquiries. There is also a greater public interest in enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA (personal data relating to third party) also applies to some of the information contained within the emails because it is the personal data of a third party, i.e. the names of individuals, telephone numbers.
Disclosing this information 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.

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FOI 202400427870 - Information Released - Annex

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