SG INTERNAL REVIEW RESPONSE FOI:202300369934 & POLICE SCOTLAND FOI 23-2808 IN REGARD TO THE NOTEBOOK OF MICHAEL MCELHINNEY

John Smythe:
This is a follow up to an earlier article regarding the Scottish Government and Police Scotland FOI responses regarding the notebook of civil servant Michael McElhinney. I could have left things as they were but you should know me by now. I exhaust all avenues and do everything I can that is in my power to do. So an internal review request was sent in to the Scottish Government and more information sought from Police Scotland by the reader who puts them in for me. 

I will post the Scottish Government review response and then the Police Scotland response and leave comments for each afterwards.  

John Smythe:
Below is the Police Scotland FOI response. 

John Smythe:
First I will go through the SG response.

Part 1 and 2
Initial request 
1. Who had access to this diary/journal before February 2019?
2. Who provided this diary/journal to Police Scotland in February 2019?

Review request 
This means that the diary/journal/notebook containing work notes was not provided to Police Scotland on
15th November 2018, but redacted photocopies were instead. That is not the same thing as the actual
diary/journal notebook containing work notes. The actual diary/journal/notebook was provided to Police
Scotland on 13 February 2019. Why did you not explain this in the original FOI response?

I have interpreted your request for a review as expressing dissatisfaction with the information that we
provided in our original response.
I have carried out a careful review of information held by Scottish Government and I consider that the
original response should be upheld with modifications. That is because redacted photocopies of the
relevant pages from the notebook were provided to Police Scotland on 15 November 2018. The physical
notebook was provided to Police Scotland on 13 February 2019. Prior to 13 February 2019 the
notebook’s author, and Scottish Government HR, had access. I apologise that this was not made clearer
in the original response.

John Smythe:
Now it is worth pointing out that in this response the Scottish Government FOI team has chosen to remove part of the original review request sent in so that anyone who happened to read the published FOI online, assuming they ever get round to publishing it, would be none the wiser. Here is the original response that went in below with the parts that were removed highlighted in bold:
 

From the ORIGINAL FOI REVIEW REQUEST:
I checked with Police Scotland and they stated the following in their FOI response:
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.
 
This means that the diary/journal/notebook containing work notes was not provided to Police Scotland on 15th November 2018 but redacted photocopies were instead. That is not the same thing as the actual diary/journal notebook containing work notes. The actual diary/journal/notebook was provided to Police Scotland on 13 February 2019. Why did you not explain this in the original FOI response? It is rather disturbing that even though you were provided with the February 2019 date you chose to dismiss it when this was the actual date that the notebook containing work notes was handed over to Police Scotland. Also, were all the pages of the notebook containing work notes photocopied and sent to Police Scotland on that date or just some pages of it? If it was only partial how many pages was it and were these redacted photocopied pages returned to the Scottish Government and are these the photocopied pages that were referred to as being retained in the original response? Please provide as much detail as you can about this so there is no more confusion.
 

John Smythe:
SO, originally the SG claimed that the notebook was handed over to Police Scotland on 15 November 2018. This was false information. 
Then it was claimed photocopied pages of the notebook were handed over to Police Scotland on 15 November 2018. That was also false information.
It turns out that only redacted photocopies of the RELEVANT pages from the notebook were provided to Police Scotland on 15 November 2018. 
Now it is not for the Scottish Government to decide what is relevant or not. That would be a matter for the police to decide. The whole notebook should have been handed over to Police Scotland and of course if there was only the original response and not the requested review you would have been misled into believing that was the case when it was not.

Part 3 
Initial request 
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?

Review request 
Why did the original FOI response from the SG fail to mention Police Scotland had been afforded
access to/sight of the diary/journal by Scottish Government on 7th September 2018.

In relation to part 3, I have interpreted your review request as expressing dissatisfaction with the
application of the exemption under section 17(1) FOISA in the original response, which provided a formal
notice under section 17(1) of FOISA that the Scottish Government does not have the information you
have requested.
I have reviewed our records and the original response, and I consider that the original response should
be upheld. I have taken this view because, having reviewed our records, I can confirm that that Scottish Government does not have the information you requested in your original request.

John Smythe:
Again parts were left out. I include the original FOI review request below with the parts that were taken out highlighted in bold which is all of it!

From the original FOI REVIEW REQUEST:
Again, Police Scotland were able to provide more information on this. They stated in their 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.
 
It makes a nice change to get a response that tries to be as transparent as possible. Maybe one day I will get one from the Scottish Government as well. Why did the original FOI response from the SG fail to mention this information? Also, why was the notebook with work notes not handed over to Police Scotland on 7th September 2018? If the notebook contained historic allegations from 2013 & 2014 etc then it would be from an old workbook.  
Again, please provide as much detail on this as you can about this.

John Smythe:
The Scottish Government has no information as to why the notebook was not handed over to Police Scotland much earlier than it was.

Part 4
Initial request 
When the diary/journal was returned to the Scottish Government on 1st May 2020 who had access to it?

Review request
That does not answer the question that was asked of who had access to it when it was returned on 1st
May 2020. So please answer that question.

I have interpreted your review request as expressing dissatisfaction with the original response. I have
reviewed the information held and our original response and I am satisfied with the answer provided, and
therefore consider that the original response should be upheld. I have taken this view after reviewing our
recorded information which shows that the notebook was returned to its author on 1 May 2020 as set out
in the original response. For the avoidance of doubt, by author I mean Mr McElhinney.

John Smythe:
Again parts have been taken out. 

From the original FOI REVIEW REQUEST:
That does not answer the question that was asked of who had access to it when it was returned on 1st May 2020. So please answer that question. Also, were the photocopied pages returned on this day as well or on another date or not at all? As asked previously were these all the pages of the notebook with work notes or only some of the pages? Please provide as much detail as you can on this.

John Smythe:
The SG does not answer the question nor any of the others which they did not even bother to put in the official response.

Part 5
Initial request
Where is this diary/journal now?

As noted above the points you have raised here have asked for information which would not have been
covered by this request therefore, I have not reconsidered this as part of my review.

John Smythe: 
Below is from the original FOI review request that was sent in regarding this part:

From the original FOI REVIEW REQUEST:
Why does the Scottish Government only retain some photocopied pages of the notebook with work notes and not all of the pages? Were these part of the photocopied pages that were sent to Police Scotland on 15 November 2018? Were they returned on 1st May 2020 together with the actual notebook with work notes? Again, please provide as much detail as you can on this.

John Smythe:
This was treated as a new request and was answered in another FOI request. That is currently awaiting a review response and I will try to post that when I hear back from the FOI reader. 

Part 6 
Initial request 
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?

Review request
Given previous FOI responses your searches leave much to be desired, appropriate and proportionate
or not. I suggest you have another look as you often seem to uncover new information only with repeated
searches which makes something of a mockery of your entire FOI response and review system as they
would not capture that information.

I have interpreted your review request as expressing dissatisfaction with the application of the exemption
under section 17(1) FOISA which stated that the Scottish Government does not have the information
requested. I have carried out a careful review of the information held and I am satisfied with the answer
provided, and therefore consider that the original response should be upheld.

John Smythe:
Now look what they left out of this one:

From the original FOI REVIEW REQUEST:
Given previous FOI responses your searches leave much to be desired, appropriate and proportionate or not. I suggest you have another look as you often seem to uncover new information only with repeated searches which makes something of a mockery of your entire FOI response and review system as they would not capture that information. The misplaced final Investigating Officer report of Judith Mackinnon being an example of this as it took three separate searches to locate!
 

John Smythe:
That bit about Judith Mackinnon was not speculation either it was fact. The SG acknowledged this and last time I checked online that revision to the FOI response has never been updated. So any member of the general public (who did not read this blog which sadly seems to be most people!) would have no idea that the SG somehow misplaced the crucial Investigating Officer report and that it would take three searches to find it. Without that last report there would have been no Decision Report from Leslie Evans which was then passed to the Crown agent. Those reports it should be remembered were so bad that the court reduced them.

Just to remind the reader what the original response was given by the Scottish Government to the question as to how David Clegg & Kieran Andrews obtained the notebook from the SG, for their book BREAK-UP, it is included below:

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 (Yeah right!) searches, the Scottish Government holds no recorded information within the scope of your request.  

John Smythe:
David Clegg must have gotten it by magic then. Perhaps some mythical creature delivered it to him. A really big fat one with a face like a burst bum maybe. 

7. Can an ordinary member of the general public obtain access to the contents of the diary either with or without suitable redactions?
 
FOI ORIGINAL RESPONSE:
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.
 
Review request:
Police Scotland stated:
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.
 
If done properly then all the possible identifiers in the photocopied pages would be redacted. There cannot be any information left after the redactions that could lead to possible identification of a complainer irrespective of other information already in the public domain. If there is, then the pages have not been properly redacted in the first place. Whoever carried out this original response is either being deceptive or is incompetent. Please release the information that is not redacted for the reasons given above.

I have interpreted your review request as expressing dissatisfaction with the application of the exemption under section 26(c) of FOISA (prohibitions on disclosure: contempt of court).
I have reviewed the original response and I have concluded that the exemption was correctly applied,
and therefore that original response should be upheld.
 

John Smythe:
Having just explained why the exemption cannot possibly cover the response this reviewer has just chosen to ignore that and insist on something that cannot be true if the redactions were properly done in the first place. There could be no identifiers left after the redactions were done! 

Part 8 
Initial request
Has Michael McElhinney kept a diary/journal for every year he has been in the Scottish Government?

As noted above the points you have raised here have asked for information which would not have been
covered by this request therefore, I have not reconsidered this as part of my review.

John Smythe:
Below is the original response and review request:

FOI ORIGINAL RESPONSE:
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.
 
FOI REVIEW REQUEST:
If that is true then why was the notebook with work notes not handed over to Police Scotland on 7 September 2018 when they had first been afforded access to/sight of it? If Mr McElhinney regularly keeps a notebook for work notes then he would surely not be using the same one in 2018 that just happened to feature historic allegations going back to 2013 & 2014 etc.

John Smythe:
A response of sorts was provided in the other FOI response mentioned previously. This Part 8 is also treated as being the same question as Part 3 in that response.

Part 9
Initial request
If Michael McElhinney kept a diary/journal for every year then why is only one diary/journal ever
referenced?

Review request 
You don’t have some of the information requested so please provide the rest of the information together
with as much detail as you can. If Michael McElhinney regularly keeps notebooks with work notes there
should be more than one notebook.

I have interpreted your review request as expressing dissatisfaction with the original response and with
the application of the exemption in section 17(1) of FOISA in respect of part 9 of that original response.
The original response clarified that “what is referred to as a ‘diary/journal’ is more accurately described as
a notebook containing work notes”. The original response further explained that Mr McElhinney regularly
keeps a notebook for work notes, as is common practice in Scottish Government. The notebook
provided to Police Scotland contained notes relevant to the events under investigation. There was no
suggestion that the notebook was from 2018, or that a notebook would cover a specific calendar year in
the same way a diary would. 

I have reviewed the original response and consider that the original response should be upheld. 

John Smythe:
So if the notebook was not from 2018 or covered a specific calendar year then the allegations could have been added to the notebook at ANY TIME. In other words the fake allegations, which is what they were, could have been added later on and not taken down at the time, as they surely would have been done if it was similar to a diary, that they were said to have happened. You could only establish if this was true or not though if you had access to the full notebook and not just select RELEVANT pages from it. 

Part 10
Initial request
Was the diary/journal of Michael McElhinney created solely to cover alleged incidents involving staff?

As noted above the points you have raised here have asked for information which would not have been
covered by this request, therefore I have not reconsidered this as part of my review.

John Smythe:
There is a response to this in the other FOI I referenced previously. 

Below is the Police Scotland response and comments:

POLICE SCOTLAND 
Freedom of Information Response
Our reference: FOI 23-2808
Responded to: 21 November 2023

In follow-up to FOI request 23-1416 and 23-2332, your recent request for information is 
replicated below, together with our response.

1. Were those redacted photocopies that were sent on 15 November 2018 all of the 
pages of the diary/journal or only select pages of the diary/journal? 

The redacted photocopies were only of parts of the diary/journal - not it all.

John Smythe:
It is still not clear who made the decision as to what pages were relevant. Was it the police or those in the Scottish Government?

2. Police Scotland were given access to/sight of the diary/journal on 7 September 2018. Why did Police Scotland not take possession of it then? According to the Scottish Government the civil servant in question regularly keeps a notebook for work notes. With that in mind it is not credible that he would be using the same 
notebook in 2018 that contained the historic allegation from 2013 – 2014 in it! It should have been an old workbook (maybe even more than one) that the historic 
allegations were contained in. 

3. Why did Police Scotland wait until 15 November 2018 for redacted photocopies (somewhat pointless if you had already had access to/sight of the journal 
previously) to be sent given that you had access to/sight of the journal on 7 September 2018?

4. Why did Police Scotland wait until 13 February 2019 to come into possession of the actual physical diary/journal?

In regards to questions 2, 3 and 4 of your request, for operational reasons the diary/journal was not seized on 07/09/2018 until non evidential and sensitive information contained in the diary/journal had been assessed and discussions as to its handling resolved.
In the interim as we worked towards securing the full diary/journal, the redacted photocopies were provided. 

John Smythe:
It took Police Scotland six months to do that? How big is Michael McElhinney's notebook that it would take six months to go through it? Were they doing one page a week? Giving that the men in the Scottish Government all seem to be rather effeminate and weak I find it hard to believe he would be able to carry a big notebook about with him without risking snapping his wrists. Worth remembering also that the RELEVANT redacted photocopies were only sent to the police on 15 November 2018. Around two months after they first became aware/had sight of the notebook. It just does not add up.

5. When did Police Scotland first become aware of this diary/journal? The exact date 
please. This is not to be confused with when they first gained access to/sight of it. 

Police Scotland first became aware of and had sight of the diary/journal on the same day -
07/09/2018.

John Smythe:
Isn't that strange? That nobody in the Scottish Government, who were so desperate to get the police involved, thought that it might be an idea to make the police aware of a notebook that contained the allegations that would help them with their investigations until then? I guess they were still in the process of writing those false allegations in that notebook before 07/09/2018.   

6. Police Scotland states it returned the diary/journal to the Scottish Government on 1st May 2020. Is this the actual physical diary/journal alone (which Police Scotland took possession of in 13 February 2019) or does it also include the redacted 
photocopies (sent to Police Scotland on 15 November 2018) as well? The Scottish Government mentions that it retains only SOME of the photocopied pages. Please could you go into as much detail as you can on this. 

It was the actual diary / journal that was returned to Scottish Government on 01/05/2020, 
not the redacted photocopies.

John Smythe:
So Police Scotland must still have the redacted photocopies. Which means the Scottish Government must have made more copies separate to those they sent to the police if as they admitted they still retain some of the pages. Did they also send copies to David Clegg for use in his book? Take a guess. 

7. Has Police Scotland consulted with anyone in the Scottish Government in regard to the two previous FOI requests and if so who?
No consultation has taken place with anyone in Scottish Government on the previous two 
FOI requests. The second part of your question is therefore not applicable.

John Smythe:
Well Police Scotland have handled the FOI requests with far more professionalism than those in the Scottish Government have regarding that notebook. Not that would be hard mind you. I wouldn't trust those in the SG's FOI unit to acknowledge that 2 + 2 = 4 without them first having to carry out an internal review to grudgingly confirm it. What an absolute disgrace they are. They will all be well paid as well for being utterly useless or worse, corrupt in their roles. They would be the first to tell you that they were really good people as well.     

Summing up:
When I hear back about the other FOI review response I will try to get it and post it with the original response and this should complete the research into the notebook via all that which is in the public domain. Referring this to the Scottish Information Commissioner would be a total waste of time as it would take them years to investigate it and unless it is a total slam-dunk then they would tend to give the benefit of the doubt to the Scottish Government and rule in their favour anyways. Not that you would ever know whether they were truly impartial or not as you are not allowed to see the documents they have access to in the course of their 'investigations'. Like so much that is wrong with the systems in Scotland you are just expected to accept what they tell you at face value and trust them. Not a chance.   

Unlike those in the Scottish Government and others I share information and do not attempt to conceal it or mislead. You may disagree with my reasoning/comments but I actually provide you with the documents so you can make up your own minds anyways.