4 September 2023: The Alex Salmond Debacle
Michael McElhinney’s journal: FOI release: Information requested:
Please could you provide the following information in regards to the diary/journal of Scottish Government civil servant Michael McElhinney which it was reported was provided to Police Scotland in February 2019 and returned to the Scottish Government on 1st May 2020:
Q: Who had access to this diary/journal before February 2019?
A: The author of the notebook, Scottish Government HR and Police Scotland had access to the notebook before February. What is referred to as a ‘diary/journal’ is more accurately described as a notebook containing work notes.
Follow up: The Scottish Government HR would include Leslie Evans, Judith Mackinnon & Nicola Richards amongst others.
23 September 2018: Police Scotland response: You have been advised by the SG that the diary/journal was provided to Police Scotland on 15 November 2018. I can confirm that on 15 November 2018, the SG provided Police Scotland with redacted photocopies of the diary/journal and not the physical diary/journal.
I maintain our position that we did not come into possession of the government-issued diary/journal of the SG civil servant Michael McElhinney until February 2019.
Q: Who provided this diary/journal to Police Scotland in February 2019?
A: The notebook was handed to the police by Scottish Government HR as part of the “OP Diem”, criminal investigation. Please note that this took place on 15 November 2018 and not in February 2019 as specified in your request.
Follow up: But this response is at odds with that of Police Scotland’s statement that the diary/journal was provided to Police Scotland in February 2019.
23 September 2023: Police Scotland 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. 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 the 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.
Comment on Police Scotland revelation: So the Police had sight of the diary/journal on 7 September 2018. Why did they not take possession of it at that time? Was it to allow time for the SG to redact much of the content? Which they deferred requesting from the SG until 15 November 2018 and were only provided with heavily redacted photocopies. That the actual diary was not in the hands of Police Scotland until 13 February 2019? makes no sense. Custody of the diary should have been enacted by Police Scotland investigators on 7 September 2018.
Q: 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?
A: 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.
Follow-up: “Op Diem” commenced on 14 September 2018 but the police did not request the diary until 15 November 2018 (3 months elapsed). Begs questions? Who told the police there was a diary? Why was it not passed to Police Scotland by HR at the start of the investigation? Why is there no record of the diary in the personal diaries of any of the HR team members?
Q: When the diary/journal was returned to the Scottish Government on 1st May 2020 who had access to it?
A: It was returned by Police Scotland on 1st May 2020 to the author of the notebook.
Q: Where is this diary/journal now?
A: The Scottish Government does not have the information you have requested. Although photocopies of some pages were retained, the notebook itself is no longer held by the Scottish Government.
Follow-up: Photocopies of some of the pages were retained yet the Scottish Government does not know where the actual diary/journal/notebook is now.
Q: 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?
A: Having conducted appropriate and proportionate searches, the Scottish Government holds no recorded information within the scope of your request.
Follow up: Stock answer from the Scottish Government. We don’t know guv!!! But assuming safeguards were in place the information could only have been made available to the journalists by the author or a very senior member of the HR team.
Q: Can an ordinary member of the general public obtain access to the contents of the diary either with or without suitable redactions?
A: I have interpreted this part of your request as a request for information in the notebook referred to. 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. But in relation to photocopies of pages that are held by the Scottish Government, 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 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 and accordingly the information requested is exempt from disclosure 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 for 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.
Follow up: Contrary to the views of the SG, David Clegg & Kieran Andrews acted in contempt of court in publishing information from the diary/journal in their book, together with extracts from the Leslie Evans Decision Report. It is illogical that the Scottish Government has taken no legal action against the book authors.
Q: Has Michael McElhinney kept a diary/journal for every year he has been in the Scottish Government?
A: Civil Service managers regularly keep a notebook for work notes. This is common practice across the SG.
Follow up: The diaries should be secured in the government archives for at least 6 years which is common practice.
Q: If Michael McElhinney kept a diary/journal for every year then why is only one diary/journal ever referenced?
A: Having conducted appropriate and proportionate searches, the Scottish Government holds no recorded information within the scope of your request but as noted above, the Scottish Government provided the notebook to Police Scotland at their request.
Follow up: An unacceptable response. Diaries/Journals of senior managers are archived in compliance with SG policy.
Q: Was the diary/journal of Michael McElhinney created solely to cover alleged incidents involving staff?
A: The answer to your question is no.
Follow up: Diaries/journals exclusively cover a year from April to March. The information provided to the police contained details of incidents from a number of years and would be recorded in a number of diaries. Provision to Police Scotland of a single diary/journal encompassing all of the incidents indicates that the so-called diary/journal may have been compiled from memory by the author, possibly with the assistance of colleagues, after the Civil Service investigation had been referred to a judicial review in the last week of August 2018.
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