POLICE SCOTLAND FOLLOW UP FOI RESPONSE TO DISCREPANCY IN DATE REGARDING THE DIARY OF SG CIVIL SERVANT MICHAEL MCELHINNEY

John Smythe:
An FOI response was issued in regard to the discrepancy between the responses previously given by the Scottish Government and Police Scotland in regard to the diary/journal/notebook of Scottish Government civil servant Michael McElhinney. This diary/journal/notebook was said to have played a key role in the Police investigation into the complaints against Alex Salmond. 

The response was forwarded onto me by the reader who sends in the FOI requests. I reproduce it below and then I will go through it and leave comments as usual.

NOTE: Police Scotland only keep a FOI disclosure log for two years which means that old FOI responses are lost and as of yet there seems no way to recover them. So download and save FOI responses when you can.  
 

Freedom of Information Response
Our reference: FOI 23-2332
Responded to: 18th September 2023

Your recent request for information is replicated below, together with our response.

In follow-up to FOI request 23-1416
One of the requests was:

1. The exact circumstances of how and when Police Scotland came into possession of the government issued diary/journal of Scottish Government civil servant Michael McElhinney.

Your official response in FOI 23-1416 was:
The diary/journal was provided to Police Scotland as a production in February 2019.
It was forwarded to the Crown Office and Procurator Fiscals Service (COPFS) and was then later returned to Police Scotland. Police Scotland then returned the diary/journal to the Scottish Government on 1st May 2020.

I sent in a similar request to the Scottish Government and they provided a different date for when the diary/journal was provided to Police Scotland. They stated it was 
15 November 2018 as shown in an extract from their response below:

From FOI 202300369934
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.

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.

Later on, in the Scottish Government response the following is also stated:

As noted above, the notebook was provided to Police Scotland at their request on 
15 November 2018.

And this:
As noted above, Scottish Government provided the notebook to Police Scotland at 
their request.

Now could you please provide more information on this as clearly both dates cannot be accurate. Was the diary/journal/notebook provided to Police Scotland on 
15 November 2018 or February 2019? Also, was it provided at the request of the Police and if so how had they become aware of it?
Lastly, could you please provide clarification as to whether this should be viewed as a brand new request or should be viewed as a review request of the original FOI 
request?

POLICE SCOTLAND FOI RESPONSE:
I will address your last point first. We have dealt with your correspondence as a new request under the Act. You have 40 working days from a response being issued in order 
to request a review and you are outside this period.

In regards to your query about the two conflicting dates you have received, your request to Police Scotland asked for “The exact circumstances of how and when Police Scotland 
came into possession of the government issued diary/journal of Scottish Government civil servant Michael McElhinney”. 

At the time of your request, this was interpreted as the date Police Scotland came into possession of the physical diary/journal. I have checked this for you and confirmed Police Scotland formally took possession of the diary/journal as a police production on 13th 
February 2019.

I note you have been advised by Scottish Government that the diary/journal was provided to Police Scotland on 15th November 2018. I can confirm that on 15th November 2018,
Scottish Government provided Police Scotland with redacted photocopies of the diary/journal and not the physical diary/journal itself.

It appears that the different answers you have received are down to how your initial question was interpreted by each organisation. I would maintain our position that we did 
not come into possession of the government issued diary/journal of Scottish Government civil servant Michael McElhinney until February 2019.

To be of some assistance and in order to be as transparent as possible I can confirm that prior to Police Scotland being provided with redacted photocopies of the diary/journal on 
15th November 2018, Police Scotland had been afforded access to/sight of the diary/journal by Scottish Government on 7th September 2018.
In relation to your additional questions, I can confirm that as part of its investigation Police Scotland sought to speak with officials and staff at Scottish Government. 
The existence of the diary came to light during the course of those investigations. Police Scotland then sought access to the diary/journal.

John Smythe:
I will go through it now.

POLICE SCOTLAND FOI RESPONSE:
I will address your last point first. We have dealt with your correspondence as a new request under the Act. You have 40 working days from a response being issued in order 
to request a review and you are outside this period.

John Smythe:
There was no point in requesting a review until the FOI response from the Scottish Government was received, in which the discrepancy in the dates became known for the first time. That response was dated 04 September 2023. It was in that response that the different date was received and at that point a follow up FOI request/review would be needed. Still, saying all that Police Scotland have answered the response and treated it as a new request. 

POLICE SCOTLAND FOI RESPONSE:
In regards to your query about the two conflicting dates you have received, your request to Police Scotland asked for “The exact circumstances of how and when Police Scotland 
came into possession of the government issued diary/journal of Scottish Government civil servant Michael McElhinney”. 
At the time of your request, this was interpreted as the date Police Scotland came into possession of the physical diary/journal. I have checked this for you and confirmed Police Scotland formally took possession of the diary/journal as a police production on 13th 
February 2019.

I note you have been advised by Scottish Government that the diary/journal was provided to Police Scotland on 15th November 2018. I can confirm that on 15th November 2018,
Scottish Government provided Police Scotland with redacted photocopies of the diary/journal and not the physical diary/journal itself.

It appears that the different answers you have received are down to how your initial question was interpreted by each organisation. I would maintain our position that we did 
not come into possession of the government issued diary/journal of Scottish Government civil servant Michael McElhinney until February 2019.

John Smythe:
So if redacted photocopies of the diary/journal are provided to them that does not actually count? The Police make a distinction between photocopies of an item/documents and not the original physical item/documents. Should that not mean that those photocopied pages should be classed as a separate production/piece of evidence then? If those photocopied pages were made use of by the Police before February 2019 then they must be. If those photocopied pages were used by the Police before February 2019 then that should have also been made clear in the original response. Also, in the response it is not made clear that all the pages of the diary/journal/notebook were provided or whether it was just select pages from it or why they would even need to be redacted.

The Police formally took possession of the diary/journal as a police production on 13th February 2019.

So before February 2019 the Police informally came into possession of the contents of the diary/journal/notebook. That is assuming that they were sent all the contents of the diary/journal in photocopied form and not just some pages of it.   

POLICE SCOTLAND FOI RESPONSE:
To be of some assistance and in order to be as transparent as possible I can confirm that 
prior to Police Scotland being provided with redacted photocopies of the diary/journal on 
15th November 2018, Police Scotland had been afforded access to/sight of the 
diary/journal by Scottish Government on 7th September 2018.

John Smythe:
So the Police had sight of this diary/journal on 7 September 2018. So why did they not take possession of it then? Obviously, they had seen it prior to redactions so what would be the point in being sent redacted pages subsequently? Why wait until 15 November 2018 and even then only to be sent redacted photocopies from it and then not take possession of the actual diary until 13 February 2019? It makes no sense. I would have thought that the Police should not have had access to the diary at all until after they had legally obtained it and entered it as a production in the first place? Are those redacted photocopied pages classed as a separate production?      

POLICE SCOTLAND FOI RESPONSE:
In relation to your additional questions, I can confirm that as part of its investigation Police Scotland sought to speak with officials and staff at Scottish Government. 
The existence of the diary came to light during the course of those investigations. Police 
Scotland then sought access to the diary/journal.

John Smythe:
So the existence of the diary only came to light during the course of the Police investigations. Why was it never referenced at all by Judith Mackinnon or Nicola Richards during their HR investigation when it clearly would have been highly relevant to it? It is possible the historic allegations in the diary were made up after the HR investigation hence why they are never referred to in the submitted documentation regarding the unlawful complaint procedure.  

Also, as the Police themselves make the distinction between photocopies of the diary/journal and the actual physical diary/journal it is possible that they still retain those photocopies they were sent on 15 November 2018. Their original response stated the diary/journal was returned to the Scottish Government on 1st May 2020. It mentions nothing about photocopies of the diary/journal which they themselves viewed as separate based on their response. 

Below is from the Scottish Government response and now needs revising with the new information:

 

FROM SG FOI RESPONSE:
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:
Should now read as:
In relation to the second part of your request, the answer to your question is that redacted photocopies of the notebook (complete or partial) and not the actual 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 specificed in your request.

Also, there is no acknowledgment by the SG of the actual physical diary/journal/notebook being handed to the police in February 2019 instead they discount that date and use 15 November 2018 instead which relates instead to the photocopied pages.   

FROM SG FOI RESPONSE:
As noted above, the notebook was provided to Police Scotland at their request on 
15 November 2018.

John Smythe:
Should read as:
Redacted photocopies of the notebook were provided to Police Scotland at their request on 15 November 2018 and not the actual physical notebook. 

The Scottish Government should have acknowledged in their response the 13 February 2019 date as to when the Police formally took possession of the actual diary/journal/notebook. They did not even though the initial FOI request to them makes specific mention of February 2019.

There was also a mention in the previous SG FOI response of the following:  

FROM SG FOI RESPONSE:
This is because, although photocopies of some pages were retained, the notebook itself is no longer held by the Scottish Government.

John Smythe:
Are these the same photocopied pages that were previously sent to the Police and then were returned to the SG on 1st May 2020? The Police response makes no mention of returning photocopied pages. It mentions only the return of the diary/journal itself. Only some pages were retained according to the SG. Were the Police sent all the pages of the notebook originally or only some of them? If they were not sent all of the pages did the SG get rid of the other pages and just keep some of them? So many questions. 

Lastly, perhaps a FOI review request is needed for more on all this? That would then make four requests sent in so far. Though it could be five as a review request could also be put into the SG following their initial response and the new Police Scotland one. This is beyond a joke.