Correspondence regarding the death of former First Minister: FOI release

Information requested

I would like to request all the following information relating to the death of former First Minister Alex Salmond

1. All emails, texts, WhatsApps and minutes between officials and ministers discussing the death of Mr Salmond.

2. All correspondence on email, text, WhatsApp or Teams of the discussions between UK Govt and Scottish ministers and officials on repatriation efforts for Mr Salmond. This should include minutes of meetings.

3. All informal communications from the First Minister, DFM and cabinet members on Alex Salmond's death.

4. All discussions and communications with the Scottish Govt's communications team relating to the death and subsequent repatriation of former FM.

Response

In relation to your first request, while our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600.

The reason for this is that your request is wide ranging in asking for any correspondence relating to Mr Salmond's death. In conducting relevant searches, a large amount of information has been found that may be within scope.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. For example, you might wish to consider narrowing the date range of your request or specifying the nature of specific aspects of information that you are particularly interested in. This would reduce the amount of information that needs to be considered.

You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at:http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

In relation to your second request, 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 28(1) (relations within the UK), (relations within the UK), 30(b)(ii) (free and frank provision of advice), 30(c) (effective conduct of public affairs) and 38(1) (b) (personal information) of FOISA apply to that information. The reasons why those exemptions apply are explained in Annex A.

Some of the information that you have requested is enclosed.

In relation to your third request, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have asked for.

This is a formal notice under section 17(1) of 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.

In relation to your forth request, 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)(ii) (Free and frank provision of advice), 30(c) (Effective conduct of public affairs), 36(1) (Confidentiality of communications) and 38(1)(b) (Personal information), of FOISA applies to that information. The reasons why these exemptions apply are explained in Annex A.

Some of the information you have requested is available from:
Correspondence on the death of former First Minister Alex Salmond: FOI release - gov.scot (www.gov.scot)
First Minister comments on death of Alex Salmond - gov.scot (www.gov.scot)
https://www.dailyrecord.co.uk/news/politics/scottish-government-investigation-alex-salmond-33886071
Body of Scottish independence champion Alex Salmond soon to be flown home from North Macedonia | AP News
First Minister comments on death of Alex Salmond - gov.scot (www.gov.scot)

Under section 25(1) of FOISA, 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(s) listed, then please contact me again and I will send you a paper copy.

Some of the information that you have requested is enclosed.

 ANNEX A

Reasons for not providing information

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. It is essential for the effective administration of the UK as a whole that there should be regular, and often private, communications between the Scottish Government and the UK Government. The release of these communications about the repatriation of Mr Salmond will mean that the UK Government is likely to be more reluctant to share similar information with the Scottish Government in future, which would reduce both the frequency and openness of communications between the Scottish Government and other UK administrations.

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 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 and in protecting the free exchange of information between the administrations to ensure that we keep each other fully informed about matters of mutual interest, such as developing arrangements for the repatriation of Mr Salmond. There is no public interest in disclosing information when that will damage relationships and disrupt future communications.

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 to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final press lines are used. Disclosing the content of these discussions between officials on press lines relating to the repatriation of Mr Salmond will substantially inhibit such discussions in the future, because officials will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly while discussions relate to a sensitive issue such as the death of a former First Minister.

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 exemptions. 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 in terms of lines to be issued to the press. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

Section 30(c) – substantial prejudice to the 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. It is essential for Ministers and officials to be able to communicate, often in confidence, with external stakeholders on a range of issues, including in this case the repatriation of a person who has passed away abroad. Disclosing the content of these communications, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to participate in meetings if they believe that their views are likely to be made public, particularly while these discussions relate to a sensitive issue such as the death of a loved one. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed decisions.

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 communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on ongoing deliberations, particularly relating to sensitive issues such as these, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private space is essential to enable all options to be properly considered.

Section 36(1) - Confidentiality of communications - confidentiality in legal

Proceedings

An exemption under section 36(1) of FOISA (confidentiality of communications - confidentiality in legal proceedings) applies to some of the information requested because litigation and legal advice privilege protects the confidentiality of communications between a client and their legal adviser. Litigation

privilege applies to documents created in contemplation of litigation and to communications when litigation is either pending or being considered, to expert reports prepared on their behalf and to legal advice given in relation to potential legal action.

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 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, and to maintaining the right to confidentiality in legal proceedings, like any other public or private organisation.

There is a very strong public interest in maintaining confidentiality of communications between legal adviser and client, and in considering litigation. It is clearly in the public interest for lawyers to be able to provide free and frank legal advice to their clients, considering and discussing all issues and options, without fear that the advice might be disclosed and potentially taken out of context. It is also in the public

interest that decisions are taken by the Government in a fully informed legal context. Ministers and officials therefore need high-quality, comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context, and with a full appreciation of relevant facts. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.

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, ie email addresses, names, phone numbers etc., 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 https://www.gov.scot/foi-responses.

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