Even if your Freedom of Information request is refused you can still get a story out of it.
Usually one complaining about the lack of transparency and whether the refusal is a sign of some sort of cover-up.
What isn’t always clear is why the request was refused. So it’s interesting to see all the reasons why Police Scotland refused to release Nicola Sturgeon’s “detailed” written statement relating to the investigation into the misuse of donations to the Scottish National Party (SNP).
So why was the request refused?
Section 34: Investigations by Scottish public authorities
This one’s probably the hardest to argue against, at least at the moment.
Information is exempt under Section 34 if it’s ever been held for the purposes of an investigation into whether someone should be prosecuted for a criminal offence. Which, well, yes.
It’s subject to the public interest test. And there’s a lot of public interest in more information about this investigation.
Generally, there’s a public interest in scrutinising the actions of the police and in ensuring that criminal investigations are carried out thoroughly. The investigation involved the the-First Minister, the country’s governing party, and donations from the public.
Here, there’s particularly questions about what led to the decision not to charge Sturgeon alongside her husband Peter Murrell. There’s been reports the police wanted to question her on some aspects of her statement but were told by the Crown Office to drop it.
The public interest in ensuring ongoing investigations aren’t compromised is likely to outweigh most arguments in favour of disclosure. This may not be the case for historic information where prejudicing an investigation is unlikely.
Sturgeon and the SNP are very much of the view that investigations are done and dusted and it was all Murrell. Police Scotland has previously said it won’t re-investigate.
But I suspect investigations would be regarded as ongoing if there’s a chance of something changing, such as new information coming to light.
Westminster’s Scottish Affairs Select Committee has announced inquiries into the financing of political parties in Scotland and the dual role of the Lord Advocate and any perceived conflicts of interest.
Pro-independence blogger Stuart Campbell has threatened to petition the Court of Session for a judicial review into whether Police Scotland’s refusal to re-open an investigation into the spending of the ring-fenced money is lawful.
Section 39: Health, safety and the environment
Information is exempt under Section 39 if disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual. Here the argument seems to be that releasing the statement could damage Sturgeon’s mental health.
While it’s a concern that should be taken seriously, to rely on this exemption you need to show a significant probability health would be endangered and a genuine link between disclosure and the endangerment.
This tends to mean evidence disclosure would lead to a psychological disorder or make mental illness worse. Causing upset or distress alone isn’t enough. As this is a high-profile case, you probably also need an argument as to why releasing this statement is a risk significantly beyond the information already public.
Sturgeon saying she’d consider releasing the statement (before deciding not to) would probably also support an argument that there’s not a huge risk here. She had told BBC’s Laura Kuenssberg on Sunday show that she’d have to take legal advice on releasing the statement but she couldn’t “think of anything in it that I wouldn’t want [published]”.
This one also has a public interest test, but it’s only really relevant if there’s evidence disclosure will lead to someone’s health being endangered. In that case, it’s likely to go against disclosure (although the significant public interest in disclosure here might outweigh it).
Section 38: Personal Information
Personal information is exempt from disclosure under Section 38. And a statement concerning an individuals knowledge and action is likely to be full of it. Redaction can be used to only withhold personal information but the view here may be that everything in the statement is included.
Such information may be released if the requester has a legitimate interest in obtaining the personal data, disclosing it is necessary to achieve that legitimate interest, and that isn’t overridden by the interests or fundamental rights and freedoms of the person whose information it is.
Police Scotland does accept there’s a legitimate interest here (it’s pretty much the same as the public interest) and disclosure may be necessary to meet that. But says Sturgeon’s rights, such as the right to privacy outweigh that.
I don’t think it does (although there may be arguments for redaction for specific pieces of information within the statement).
The information relates to a senior official’s public life (you don’t get much more senior and public-facing than First Minister). We’ve covered above why the harm and distress caused by disclosure may not be an overriding factor.
There may some details, particularly about other people who aren’t public figures, that relate to someone’s private life that should be redacted.
What next?
I suspect there’s already one or several appeals to the Scottish Information Commissioner about the written statement.
And it’ll be interesting to see what happens with those as he seems quite open to public interest arguments in favour of disclosure.
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