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Publication - FOI / EIR Release

Chief Constable's leave of absence: FOI release

Published: 21 Mar 2018

Information request and response under the Freedom of Information (Scotland) Act 2002.

FOI reference: FOI/18/00132
Date received: 17 January 2018
Date responded: 16 March 2018

Information requested

1. For what purpose a meeting room in the Scottish Parliament was booked by the Cabinet Secretary for Justice on 9 November 2017 from 2pm-4pm. and for information relating to the Scottish Government's engagement with stakeholders in relation to the former Chief Constable's leave of absence.

(N.B. given the context, we have understood part 5 of your request to refer to correspondence with SPA about matters related to the Chief Constable's case, rather than all correspondence with SPA, regardless of subject):

2. Agendas, minutes and any other record of the meeting between Paul Johnston and Phil Gormley on 30 November 2017.

3. Any correspondence, including records of meetings and phone calls, between Michael Matheson and Paul Johnston regarding Paul Johnston's appearance before the Public Audit Committee on 21 December, both before and after the appearance.

4. Any correspondence, including records of meetings and phone calls, between Michael Matheson and Paul Johnston regarding the Chief Constable Phil Gormley's leave of absence.

5. Any correspondence, including records of meetings and phone calls, between Michael Matheson (and/or his officials) and the SPA from 1-9 November 2017.

(N.B. given the context, we have understood part 5 of your request to refer to correspondence with SPA about matters related to the Chief Constable's case, rather than all correspondence with SPA, regardless of subject).

6. Details and minutes of all meetings and correspondence between Michael Matheson (and/or his officials) and (i) the Police Scotland Executive Team, (ii) Phil Gormley, and (iii) the Police Investigations & Review Commissioner concerning Chief Constable Phil Gormley's leave of absence.

Response

In response to part 1 of your request, I can confirm that the room you refer to was held for a planned meeting between the Cabinet Secretary for Justice and the group, Action Against Stalking.

Regarding part 2 of your request, the Scottish Government has already made clear that there was no agenda or minute taken of Paul Johnston's informal meeting with the former Chief Constable on 30 November. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

In response to parts 3-6 of your request, some of the information you have requested formed part of the papers for the Scottish Parliament Public Audit and Post-legislative Scrutiny Committee session of 25 January, and is available online at the following link:

http://www.parliament.scot/S5_Public_Audit/Meeting%20Papers/Agenda_and_Papers_-_25_Jan_2018.pdf

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

In addition to those documents, I have indentified some other information that is within the scope of your request. I have enclosed most of that information. However, we are unable to provide some of the information identified because exemptions under section 36(1) (confidentiality in legal proceedings), 36(2) (actionable breach of confidence), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views), s30(c) (effective conduct of public affairs and 38(1)(b) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Reasons for not providing information

An exemption applies, subject to the public interest test.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the material, because it refers to 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. 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.

Exemptions under section 30(b)(i) (free and frank provision of advice) and 30(b)(ii) of FOISA apply to some of the material. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice, or exchanges of views between officials. These exemptions recognise the need for officials to have a private space to discuss issues and within which to provide free and frank advice to Ministers. Disclosing the content of free and frank discussions and advice intended to inform Ministers and officials about current issues regarding their engagement with stakeholders, will substantially inhibit the provision of such advice in the future.

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 discuss issues and provide full and frank advice to Ministers, regarding discussions with stakeholders. This private space is essential to enable all issues are properly considered in advance of engagement with stakeholders. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of such engagement, which would not be in the public interest.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to a small amount of the information requested. This exemption applies because revealing the source of the Scottish Government's legal advice 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. 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 thatthere 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 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,

https://beta.gov.scot/publications/scottish-ministerial-code-2016-edition/

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.

An exemption applies, not subject to the public interest test.

An exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some of the information requested because it was obtained in confidence from a third party, and disclosure would constitute an actionable breach of confidence. This is because the information is confidential, was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality. 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.

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. We have applied this exemtion to the names of all junior officials, and to all telephone numbers.

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

Contact

Please quote the FOI reference

Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

Published:
21 Mar 2018
Chief Constable's leave of absence: FOI release