Scottish Government unlawfully claimed Alex Salmond harassment report 'did not exist'

Scottish Government officials breached Freedom of Information legislation by attempting to claim the final report of the investigation of harassment complaints against Alex Salmond did not exist, it can be revealed.

In the ruling, Scottish Information Commissioner Darren Fitzhenry criticises ministers for taking an “overly legalistic” and “overly pedantic” approach and concludes the Scottish Government breached Freedom of Information (FOI) laws twice.

The finding follows a FOI request submitted by The Scotsman in September last year for any official report resulting from the Scottish Government’s harassment complaints procedure under which the former first minister was investigated.

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Mr Salmond succeeded in having the legal force of the decision report reduced through a judicial review, conceded by the Scottish Government on the grounds that it was “tainted by apparent bias”.

The former first minister was also acquitted of criminal sexual offence charges in a trial last year.

Officials at the Scottish Government had initially claimed it could not release any official reports relating to the harassment complaints procedure on several grounds including legal privilege, contempt of court, personal information and prejudicing the conduct of effective public affairs.

However, following a review of the decision, ministers attempted to claim the report was not held and did not exist.

They argued the permanent secretary’s decision report was not in scope due to the decision to concede the judicial review brought by Mr Salmond and the resulting reduction of the report.

Officials argued this meant the decision report was not held by the Scottish Government as it was not the “outcome” of the complaints procedure.

Ruling the Scottish Government had breached Freedom of Information law in two ways, the commissioner criticised the “overly pedantic” approach of the Scottish Government.

He said: “The commissioner does not accept the ministers’ overly legalistic interpretation of the applicant’s request and he cannot see any reason for the ministers’ decision to apply section 17(1) in their review outcome, when the original response indicated that the ministers understood the request and had identified the withheld information.

“The commissioner considers that the applicant made a clearly worded request which captured the reduced decision report.

“Even if the applicant fell into the category of persons who can be expected to describe precisely what information they wish [to] receive … the commissioner would still expect an authority to have understood the information that was captured by [the] request … rather than simply deny that the information existed because the terminology used did not exactly match that used by the authority.

"This appears to be overly pedantic.”

Mr Fitzhenry added: “There is no doubt in the commissioner’s mind that the applicant clearly identified the information he requested and that the ministers understood exactly what information they were being asked for.

“In conclusion, the commissioner does not accept the ministers’ interpretation of the applicant’s request. The commissioner is satisfied that it was clear what information the applicant had requested, and that request which specifically refers to ‘any official report’ captures the reduced decision report.

“The commissioner finds that the ministers were wrong to interpret the request the way they did.”

As part of the ruling, the Scottish Government was also criticised for failing to respond to the request in enough time.

The government will now have the opportunity to block the publication of the decision report on other grounds.

It follows a decision in which the National Records of Scotland – a government agency – was criticised for a “lack of transparency” in connection with refusing to publish the breakdown of Covid-19 deaths in Scottish care homes.

A Scottish Government spokesperson said: “We have received the decision and are considering its terms.”

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