FOI 202300369934 SCOTTISH GOVERNMENT RESPONSE IN REGARDS TO THE DIARY/JOURNAL OF MICHAEL MCELHINNEY

John Smythe:
I was forwarded this response, via my FOI reader, from the Scottish Government regarding the diary/journal of Michael McElhinney. I did a post previously about the Police Scotland FOI response and also asked readers to send in suggestions for the request to be sent to the SG. That SG response has now been provided. 

I post the response below and will then go through it.

Your request
You asked for: 
" Please could you provide the following information in regards to the diary/journal of Scottish
Government civil servant Michael McElhinney which was provided to Police Scotland in February
2019 and returned to the Scottish Government on 1st May 2020:

REQUEST:
1. Who had access to this diary/journal before February 2019?

RESPONSE 1:
In relation to the first part of your request, the answer to your question is that the author of the
notebook, Scottish Government HR and Police Scotland had access to the notebook before February
2019. Outwith FOISA, it might help if I clarify that what is referred to as a ‘diary/journal’ is more
accurately described as a notebook containing work notes.

John Smythe:
The Scottish Government's FOI response is at odds with that of Police Scotland's official FOI response. As you should recall, if you have read the previous article on this, the Police FOI response stated that the diary/journal was provided to Police Scotland in February 2019. Scottish Government HR would include 'Investigating Officer' Judith Mackinnon and Nicola Richards amongst others. 

REQUEST:
2. Who provided this diary/journal to Police Scotland in February 2019?

RESPONSE 2:
In relation to the second part of your request, the answer to your question is that the notebook was
handed to the police by Scottish Government HR as part of the criminal investigation. Outwith FOISA,
please note that this took place on 15 November 2018 and not in February 2019 as specified in your
request.

John Smythe:
So the date given for this notebook being handed to the Police was 15 November 2018 and not February 2019, according to the Scottish Government.
Just to repeat the official positions as to when this diary was handed to the Police:
POLICE SCOTLAND: FEBRUARY 2019.
SCOTTISH GOVERNMENT: 15 NOVEMBER 2018.
That is a difference of three months.
The Police investigation began in late August 2018. 
That is a difference of three months.

REQUEST:
3. Given that it was a diary/journal allegedly containing information on historical incidents relevant to
the Police investigation why was it not provided to the Police much earlier? In late August 2018 for
example?

RESPONSE 3:
In relation to the third part of your request, while our aim is to provide information whenever possible, in
this instance the Scottish Government does not have the information you have requested. 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, the Scottish
Government holds no recorded information within the scope of your request. 
As noted above, the notebook was provided to Police Scotland at their request on 15 November
2018. 

John Smythe:
The Scottish Government cannot answer why this diary/journal/notebook, which was supposed to have played a crucial role in the investigation, was not provided to Police Scotland much earlier in the investigation although they do sneak in at the end the admission that it was provided to Police Scotland at their request. How would the Police have known to ask for it? Assuming the SG are telling the truth about the 15 November 2018 date then why was it not handed over in Late August 2018 at the start of the Police investigation instead? Why did they wait so long? Why is it never referenced in any of the SG's submitted documentation by either Judith Mackinnon or Nicola Richards?

REQUEST:
4. When the diary/journal was returned to the Scottish Government on 1st May 2020 who had access
to it?

RESPONSE 4:
In relation to the fourth part of your request, the answer to your question is that the notebook was
returned by Police Scotland to the author of the notebook on 1st May 2020.

John Smythe:
Both Police Scotland and the Scottish Government are in agreement with that. The diary/journal/notebook was returned to the Scottish Government on 1st May 2020.

REQUEST:
5. Where is this diary/journal now?

RESPONSE 5:
In relation to the fifth part of your request, while our aim is to provide information whenever possible, in
this instance the Scottish Government does not have the information you have requested. This is a
formal notice under section 17(1) of FOISA that the Scottish Government does not have the
information you have requested. This is because, although photocopies of some pages were retained,
the notebook itself is no longer held by Scottish Government.

John Smythe:
Photocopies of some of the pages were retained yet the Scottish Government does not know where the actual diary/journal/notebook is now.

REQUEST:
6. How could ‘journalists’ David Clegg and Kieran Andrews have obtained this diary/journal from the
Scottish Government as they mention in their book BREAK-UP?

RESPONSE 6:
In relation to the sixth part of your request, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. 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, the Scottish Government holds no recorded information within the scope of your request. 

John Smythe:
The Scottish Government holds no information as to how the diary/journal/notebook or parts of it ended up with David Clegg & Kieran Andrews. It is hard not to laugh when the Scottish Government claims to have conducted appropriate and proportionate searches. If my FOI articles have established anything it is that the Scottish Government has a poor record in doing searches. The missing final Investigating Officer report of Judith Mackinnon being one example of this. It took three separate searches to discover it had been 'misplaced'. If only one FOI request had went in then this would never have been known. I am relentless and always try to exhaust all avenues but your ordinary citizen should not have to do that. The information provided should be accurate. They should not have to ask for reviews in order to try and get accurate information. If you were being charitable you could say those in the FOI units were incompetent. In regards to that 'misplaced' Investigating Officer report the Scottish Government has still not gotten round to updating the information on their FOI publications pages to show the revised response of October 2022. That is almost a year ago now! Just to remind the reader this is what that revised response said:

This review request has been revised in October 2022 to take into account documents which had not been correctly dated at the time of their creation in 2018 and were therefore not found by the initial FOI case handler, or the reviewer.

John Smythe:
If the Scottish Government could 'misplace' something that important (THE COURT REDUCED FINAL INVESTIGATING OFFICER REPORT OF JUDITH MACKINNON THAT WAS THE BASIS FOR THE SUBSEQUENT DECISION REPORT OF LESLIE EVANS NO LESS!) then how could they be trusted with any other documentation? What confidence could anyone have in their ability to carry out appropriate and proportional searches or better still just carry out basic searches? A bairn with a biscuit bum could not do a worse job of it.

REQUEST:
7. Can an ordinary member of the general public obtain access to the contents of the diary either with
or without suitable redactions?

RESPONSE 7:
In relation to the seventh part of your request, I have interpreted this part of your request as a request
for information in the notebook referred to. 
While our aim is to provide information whenever possible, in this instance the Scottish Government
does not have some of the information you have requested. This is a formal notice under section 17(1)
of FOISA that the Scottish Government does not have the information you have requested. This is
because, as noted above, the notebook is no longer held by the Scottish Government.

In relation to photocopies of pages that are held by Scottish Government, in this instance we are unable
to provide the information that you have requested because an exemption under section 26(c) of
FOISA (prohibitions on disclosure: contempt of court) applies to that information.
The exemption applies because disclosure of any of the information you have requested in this part of
your request would be likely to lead to the identification of individuals and so would breach orders made
under the Contempt of Court Act 1981. Such a disclosure would therefore be punishable as a
contempt of court, and accordingly the information requested is exempt from disclosure by virtue of
section 26(c) of FOISA. 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. 
I have noted that you refer to the possibility of suitable redactions being made. However, I have
concluded that it would not be possible to redact the information requested in such a way as to ensure
that there would be no realistic prospect of identifying a complainer. In determining whether there is a
realistic prospect of identification, account may be taken of information already in the public domain.
 Given this information, I consider that there is a realistic prospect that third parties could seek to
combine the information that you have requested with other readily accessible information and thereby
identify individuals.

John Smythe:
So, no access to the diary/journal/notebook as it is no longer held by the Scottish Government. In relation to the photocopies they hold they are talking nonsense when they claim disclosure of ANY OF THE INFORMATION requested in that part of the request would be likely to lead to the identification of individuals and so would breach orders made
under the Contempt of Court Act 1981. 

This excuse, disturbingly, is not just used by the Scottish Government but also the supposedly 'impartial' FOI Scottish Information Commissioner's (and their slow as cancer investigators) unit as well. That none of the information can be released as it would lead to possible identification. It is not true. Suitable redactions could be made to those pages and they would still be intelligible to the reader. The redactions if properly done would apply ONLY to possible identifiers. The identifiers would be the following according to the Scottish Government itself:
   

In relation to the identification of individuals who are subject to a Contempt of 
Court order, withheld information includes:
the nature and location of the roles of the two women who made complaints within the
Scottish Government at any time and specific posts held, including names of their line
managers and immediate colleagues and buildings they worked in;
their ages, in isolation or in comparison to others, and their experience in any post;
health or other personal or family information.

John Smythe:
Nature and location of roles at any time specific posts held, including names of their line managers (a few people have made this mistake in articles online) and immediate colleagues and buildings they worked in (So why is Bute House mentioned?); their ages, in isolation or in comparison to others, and their experience in any post; health or other personal or family information.

Now all of the above information would take up precious little space in an email or in a diary/journal/notebook etc. With those redactions in place there would still be a lot of information left in them that could be released. Indeed if the above identifiers were all that was in any email or letter they would be unintelligible. Nobody reading them would be able to make any sense of them. The Scottish Government and the SIC are providing false information to people when they claim that what would be left in documents after redactions would be unintelligible to the reader. An extract from an attachment provided by the SG as part of the SIC's Decision Notice 083/2021 documentation in regards to the Decision Report of Leslie Evans makes that clear below:

We confirm that, standing the Commissioner’s decision, the decision report falls
within scope of this particular request. You wrote to the Committee convener
last year to explain that even with redactions, the report contains useful and
intelligible information including about the way in which the Permanent Secretary
approached her decision-making task.

John Smythe:
Another example of this improper use of redactions can be found in the James Hamilton Report. There are entire passages redacted in it. There is no way identifiers could make up entire passages. There was no legal basis for those extra redactions. They were done purely to prevent damaging information concerning the actions of those in the Scottish Government from coming out into the public domain.

If despite all of the information provided above you still think the Scottish Government is correct in their response then you must also accept that David Clegg & Kieran Andrews are in contempt of court for publishing that information. They published information from that diary/journal/notebook/panini sticker album in their book. Together with extracts from the Decision Report as well. The Scottish Government has taken no legal action against them even though they are SG documents and have been disclosed to the public illegally. It is also worth remembering that the two original complainers had no problem with helping those two with their book either. Then again those two doughnuts thought that the Complaints Procedure was fair.  

REQUEST:
8. Has Michael McElhinney kept a diary/journal for every year he has been in the Scottish
Government? 

RESPONSE 8:
In relation to the eighth part of your request, the answer to your question is that MM regularly keeps a
notebook for work notes. Outwith FOISA, it may help if I clarify that this is common practice across
Scottish Government. 

John Smythe:
Common practice across the Scottish Government to keep a notebook for work notes. That's good to know. I suggest people send in FOI requests asking for copies of those notebooks for work notes regarding others in the Scottish Government. It is a common practices after all apparently.

REQUEST:
9. If Michael McElhinney kept a diary/journal for every year then why is only one diary/journal ever
referenced?

RESPONSE 9:
In relation to the ninth part of your request, while our aim is to provide information whenever possible, in
this instance the Scottish Government does not have some of the information you have requested. 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, the
Scottish Government holds no recorded information within the scope of your request. As noted above,
Scottish Government provided the notebook to Police Scotland at their request. 

John Smythe:
Some information is not all information. If someone says they have left you some cake that means there is some cake for you. If Michael McElhinney only had one notebook it must be one hell of a size in order to cover so many years. Maybe the Police needed some heavy lifting equipment to pick it up from the Scottish Government?

REQUEST:
10. Was the diary/journal of Michael McElhinney created solely to cover alleged incidents involving
staff?"

RESPONSE 10:
In relation to the tenth part of your request, the answer to your question is no. 

John Smythe:
Dear reader, would you trust the Scottish Government to be truthful about this?

Summing up:
This just gets worse and worse. There now needs to be a review of this FOI and also another FOI sent into Police Scotland in order to try and establish what the actual date the diary/journal/notebook was provided to them was and why it differs from the one given by the Scottish Government. 

I would be interesting to hear the thoughts of others on this article. Also, thoughts on the format I use for this FOI response. Is it easy to follow and understand?

I am close to my target of 100 posts now. I am still not sure what I will do when I hit it. If I disappear after this though then at least you will have the hundred articles to download and keep.