Decision 191/2025: Details of discussions regarding Mr Sam Eljamel

Authority: Scottish Ministers
Case Ref: 202401546
 

Summary

The Applicant asked the Authority for correspondence between it and Police Scotland relating to Mr Sam Eljamel.  The Authority provided some information but withheld other information falling within the scope of the request as it considered disclosure would, or would be likely to, substantially prejudice the prevention or detection of crime. 

The Commissioner investigated and found that the Authority had been entitled to withhold some information, but that the remainder was not exempt from disclosure and was wrongly withheld.  The Authority had also failed to identify all of the information falling within the scope of the request, but the Commissioner was satisfied it had done so by the close of the investigation.   

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 35(1) (a) (Law enforcement); 47(1) and (2) (Application for decision by Commissioner).

Background

1. On 18 September 2024, the Applicant made a two-part request for information to the Authority.  In the first part of his request, he asked for details of all meetings notes/minutes/phone calls and any other correspondence from Police Scotland with Scottish Government officials to include Cabinet Ministers, MSP’s and others in attendance relating to Consultant Neurosurgeon Muftah Salem Eljamel also known as Sam Eljamel.
2. The remaining part of the request does not form part of the Applicant’s application to the Commissioner.
3. The Authority responded on 15 October 2024.  The Authority provided some information to the Applicant, subject to redaction as it considered it to be exempt from disclosure in line with the exemptions in section 35(1)(a) (Law Enforcement), s38(1)(a) and 38(1)(b) (Personal information) of FOISA.  The Authority also considered the public interest, where applicable, to lie in maintaining the exemption.
4. On 29 October 2024, the Applicant wrote to the Authority requesting a review of its decision. The Applicant stated that he was dissatisfied with the decision because he believed there was information missing from the email chain he had been provided with and wanted the Authority to check that there were no other missing emails from the chain.
5. The Authority notified the Applicant of the outcome of its review on 26 November 2024.  It concluded that an email was missed when it was carrying out its searches, and therefore it did not release it to him when in fact it should have done.  The Authority apologised for this.  The Authority confirmed its original response with modifications.  It provided the missed email, subject to the redaction of some information it considered to be exempt in line with sections 35(1)(a) and 38(1)(b).
6. On 26 November 2024, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  The Applicant stated he was dissatisfied with the outcome of the Authority’s review because he did not agree with the Authority’s reliance on section 35(1)(a) and considered it was in the public interest for the information to be disclosed.  The Applicant also believed that there were possibly still emails missing from the chain disclosed to him. The Applicant did comment that names must be redacted as the law requires in certain instances. 

Investigation

7. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
8. On 18 December 2024, the Authority was notified in writing that the Applicant had made a valid application.  The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information, and the case was allocated to an investigating officer.
9. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions.  These related to its reasons for considering information should be withheld under section 35(1)(a) of FOISA, together with its consideration of the application of the public interest test and also whether any other relevant information was held falling within this part of the Applicant’s request.
10. The Applicant was also provided with the opportunity to submit any further comments as to why he considered it was in the public interest for the requested information to be disclosed, which he did.

Commissioner’s analysis and findings

11. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

Section 1(1) – General entitlement

12. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority which holds it is entitled to be given that information by the authority subject to qualifications which, by virtue of section 1(6) of FOISA, allow Scottish public authorities to withhold information or charge a fee for it.  The qualifications contained in section 1(6) are not applicable in this case.
13. The information to be given is that held by the Authority at the time the request is received, as defined by section 1(4) of FOISA.
14. In its review response to the Applicant, the Authority identified an email that had been missed in its initial response.
15. In his application to the Commissioner, the Applicant was concerned that there may be further missing emails.
16. The standard of proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities.  In determining where the balance of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
17. The Commissioner also considers, where appropriate, any reason offered by the public authority to explain why it does not hold the information.  While it may be relevant as part of this exercise to explore expectations about what the authority should hold, ultimately the Commissioner’s role is to determine what relevant recorded information is (or was, at the time the request was received) actually held by the authority.
18. The Authority outlined in its submissions to the Commissioner the searches that had been carried out, detailing the search terms used, the digital locations searched, as well as the staff who had been asked to carry out these searches.   
19. It identified the folders within its electronic records and document system (eRDM) that were searched.  The Authority confirmed that email searches carried out would have included sent and deleted messages.  It also explained that its guidance to staff advised that all documents/emails/notes of meeting etc should be saved to the eRDM system rather than on desktops or other drives. The Authority submitted that all appropriate searches were carried out, and explained that when staff were carrying out searches they were aware of its guidance to check for information on all devices, including notepads for handwritten notes.
20. One of the emails disclosed in part in response to the Applicant’s request discussed a meeting that had taken place, and it might reasonably have been expected that further information may be held in connection with this, such as notes, minutes etc.
21. The Authority explained that this had been an introductory meeting that led to no decisions or actions, and as such no minute was considered to be required.
22. Following further searches during the course of the investigation one further email making arrangements for this meeting was located.  This was subsequently disclosed to the Applicant on 10 June 2025, subject to redaction of some information the Authority considered to be outwith scope and other information it considered exempt under section 38(1)(b) as it constituted third party personal data. 
23. The Authority explained how this had been missed during its searches at request and review stage.  It commented that when meeting invites are accepted, the email is automatically moved from an inbox to a calendar, then after some time calendar invites are moved to a calendar archive (which was where this meeting invite was found.
24. As this information falls within the scope of the Applicant’s request and should have been identified either in response to the initial request or at review, the Commissioner must find that the Authority failed to comply with part 1 (specifically section 1(1)) of FOISA.
25. Having considered the submissions and supporting evidence provided by the Authority in relation to the searches carried out, the Commissioner is satisfied that by the conclusion of the investigation, the Authority had taken adequate, proportionate steps to establish what information it held falling within the scope of the Applicant’s request.
26. He is therefore satisfied, on the balance of probabilities, that (by the close of the investigation) the Authority identified, located and provided all the relevant information it held.

Withheld information

27. The Authority identified information contained in four email chains falling within scope of the Applicant’s request.
28. As mentioned above, this information was disclosed to the Applicant, subject to redaction of some information the Authority considered to be exempt in line with section 35(1)(a) of FOISA. 

Section 35(1)(a) – Law enforcement (prevention or detection of crime) 

29. Section 35(1)(a) of FOISA exempts information if its disclosure would, or would be likely to, prejudice substantially the prevention or detection of crime.
30. As the Commissioner’s briefing on section 35 notes, the term “prevention or detection of crime” is wide ranging.  It encompasses actions taken to anticipate and prevent crime, or to establish the identity and secure prosecution, of people suspected of being responsible for committing a crime.  This could mean activities in relation to a specific (anticipated) crime or wider strategies for crime reduction and detection.
31. The exemption in section 35(1)(a) can only apply where disclosure of the information in question would, or would be likely to, prejudice substantially the prevention or detection of crime.  FOISA does not define “substantial prejudice”, but the Commissioner considers an authority would have to identify harm of real and demonstrable significance. The harm would also have to be at least likely and, therefore, more than a remote possibility.  The authority must be able to demonstrate that some causal relationship exists between the potential disclosure of the information being withheld and the prejudice the exemption is designed to protect against.
32. The exemption is subject to the public interest test in section 2(1)(b) of FOISA.   

The Applicant's submissions on the exemption

33. The Applicant commented that the information provided to him referred to public inquiries and expressed his view that public inquiries were not criminal inquiries and cannot determine criminal or civil guilt, a function he considered was reserved for the courts.  He questioned why, therefore, the Authority was relying on section 35(1(a) when, in his view, the Authority and Police Scotland were discussing the sharing of resources regarding a Public Inquiry and Patient Clinical Reviews.
34. He believed that there should be transparency surrounding this.  He considered that regarding the reference to Patient Clinical Reviews they had absolutely nothing to do with criminality.  The Applicant commented that the Authority could not be seen to have any involvement in a live police investigation, which was why he wanted to know what had been discussed between it and Police Scotland. 

The Authority’s comments on the exemption

35.  The Authority provided some background information to the subject matter of this request for context.
36. It advised that Muftah Salem Eljamel worked as a neurosurgeon at Ninewells Hospital in Dundee between 1995 and 2013.  He had been suspended by NHS Tayside following concerns raised by patients.  A Public Inquiry into the conduct of the former neurosurgeon was announced in September 2023 and is due to commence in 2025 and is to be led by Lord Weir.  In addition, a separate independent clinical review led by Professor Stephen Wigmore, Regius Professor of Clinical Surgery and Head of Department of Surgery at the University of Edinburgh is also due to commence in 2025. The Independent Clinical Review will focus on clinical issues linked to individual patients’ care.  The Authority advised that both processes are wholly independent but supported by it in operational terms.   
37. The Authority added that an independent investigation by Police Scotland into the actions of Mr Eljamel began in September 2018 and was still live, with officers gathering evidence.
38. The Authority considered that the information being withheld related to the active Police Scotland investigation.
39. It believed the exemption applied because disclosing information which discusses the process of gathering evidence that the Police and Crown Office may use to successfully bring criminal charges against Mr Eljamel would be substantially prejudicial to the ongoing criminal investigation.
40. The Authority acknowledged that some of the exchanges set out discussions about resources, but noted that nonetheless the inquiry and Police Scotland investigation had been established for separate purposes, with the latter being established to consider whether there is sufficient evidence of a crime to proceed to criminal charges.
41. The Authority’s view was that disclosure of the information requested would, or would be likely to, prejudice substantially the ability of Police Scotland in both the prevention and detection of crime, because it would give an insight into the process by which Police Scotland collect evidence and build a criminal case and also disclose details of the stage and focus of the investigation without appropriate context.  It considered that as Police Scotland had not publicly disclosed what evidence it was considering or the stage of the investigation, it would not be appropriate for the Authority to put the information into the public domain.
42. The Authority considered that disclosure would prejudice substantially the ability of both Police Scotland and the Crown Office and Procurator Fiscal Service to effectively conduct the active criminal investigation which, in turn, would be substantially prejudicial to the prevention and detection of crime in Scotland.
43. In addition, the Authority had sought the views of Police Scotland on disclosure.  Police Scotland provided its view, agreeing that some of the information had been correctly withheld under this exemption.
44. Police Scotland considered that disclosure of the information was sub judice, and in relation to an ongoing investigation, and further that the information could form part of the investigative strategy.  It stated that it would be reasonably expected that this information would form part of disclosure during any proceedings through court, or a public inquiry etc., and that disclosing the information outwith the scope of the Public Inquiry would therefore undermine due process. 

The Commissioner's view on the exemption

45. The Commissioner has considered carefully the submissions from the Applicant, the Authority, and the views of Police Scotland.
46. He has also noted the content of the information being withheld in relation to the tests that must be met for this exemption to be engaged.  As was mentioned before, identified harm of real and demonstrable significance that is likely and, therefore, more than a remote possibility must be demonstrated.
47. For some of the information, specifically that information being withheld in document 3, the Commissioner accepts that disclosure would, or would be likely to, cause substantial prejudice to the prevention or detection of crime, given the nature of the discussion in that particular exchange.  Given this, the Commissioner must take care not to reveal the nature of those discussions in providing his reasoning.  
48. However, for the information being withheld under this exemption in documents 1, 2 and 4, the Commissioner is not satisfied that the level of harm or substantial prejudice required for the engagement of the exemption and anticipated by the Authority would result from disclosure.  His view is that the information reveals nothing that would not reasonably be expected in the early stages of evidence gathering and that it is not particularly revelatory.  
49. As the Commissioner does not consider that the exemption in section 35(1)(a) has been correctly engaged in relation to some of the information, he is not required to consider the public interest test in section 2(1)(b) of FOISA in relation to this information.  The Commissioner therefore requires the Authority to disclose this information to the Applicant subject to the redaction of personal information (as appropriate).
50. However, as he has found that the exemption in section 35(1)(a) was correctly relied upon for the information in document 3, he will go on to consider the public interest test in relation to this information. 

Public interest test

The Applicant's submissions on the public interest

51. The Applicant considered the public had the right to know if there had been any collusion between the Authority and Police Scotland in an extremely serious matter involving the former Consultant Neurosurgeon Mr Eljamel.
52. The Applicant’s view was that previously released email exchanges between the Authority and Police Scotland showed they were working together on the Independent Clinical Reviews (which are to begin soon).
53. He believed there had to be full disclosure of all documentation by the Authority to gain the trust of patients.  He considered this was necessary for transparency and accountability and that unless the full facts were known there would be no patient trust or faith in either the Public Inquiry or the individual clinical reviews.   
54. The Applicant stated that over 200 patients had been harmed by this surgeon, and that the case had been described as the biggest scandal by a surgeon in Scotland. He considered the withheld information was of significant public interest as it related to Police Scotland and the Authority discussing a “live” investigation and in his view, hiding behind FOISA to prevent the public and patients from knowing what was taking place at that moment in time.
55. He considered disclosure of the information would serve the public in several ways. Firstly, he believed it would promote transparency and accountability, and secondly, that it would enable the public to make informed judgements that the law was being upheld without fear or favour or interference by anyone outside of Police Scotland.  Thirdly, he considered it would foster public trust and confidence in Police Scotland and the Authority by demonstrating a commitment to openness and transparency.
56. The Applicant questioned why there would be any sensitive information within these discussions unless discussions were carried out and information shared that should not have been.  He considered that the public interest in providing the information outweighed any potential harm from its disclosure.
57. The Applicant referred to a review mentioned within the documents he had been provided with and commented that this was part of a Police Scotland “live” investigation and should not therefore have been discussed by civil servants.  It should only, in his view, be discussed with the Crown Office, Procurators Fiscal, and other relevant investigative authorities and certainly not the Authority.   

The authority’s submissions about the public interest

58. The Authority recognised that there was some public interest in disclosure in order to promote openness and inform public debate about the provision and standard of healthcare in Scotland, and in the performance of Mr Eljamel in particular. It considered the public interest would be met, at least in part, by the information to be disclosed in the upcoming Public Inquiry and Independent Clinical Review due to commence this year.
59. However, the Authority considered that there was a stronger public interest in avoiding substantial prejudice to the prevention and/or detection of crime.  It was not in the public interest to make it harder for Police Scotland or other law enforcement agencies to detect crimes, particularly in complex investigations like this one, by disclosing information about the process of their investigation and the evidence requirements which will help inform that investigation.
60. The Authority’s view was, that on balance, the public interest in withholding the information in this request in order to avoid harming Police Scotland and other law enforcement agencies’ ability to prevent or detect crime as effectively as possible, outweighed any public interest in disclosing the information. 

The Commissioner's view on the public interest

61. The Commissioner has considered the submissions from both the Applicant and Authority in relation to where the balance of the public interest lies.
62. The Commissioner recognises that the topic at the heart of this request is of significant importance and public interest, not just to those patients affected but also to the wider public, all of whom use the health service.  He also acknowledges that there is a public interest in ensuring that the three different strands of work being undertaken in relation to the concerns around Mr Eljamel’s practices are conducted appropriately and without inappropriate interference.
63. The Applicant has expressed his concern that these discussions contained sensitive information that should not have been shared and considered the public interest in disclosing the information and allowing it to be seen, outweighed any potential harm from such disclosure.  The Commissioner notes the Applicant’s concerns and agrees that there is a wider public interest in knowing that such interactions have been properly conducted.  Disclosure could go some way to either confirm or waylay these concerns.   He must however, balance this against any harm that would, or would be likely to, occur from disclosure.
64. The Commissioner acknowledges the Authority’s point that the Public Inquiry and Independent Clinical Review will go some way to addressing these matters of public interest through the information discussed and disclosed in those forums.
65. The Commissioner recognises that the criminal investigation into Mr Eljamel’s activity is also something of serious concern and benefit to the public.  However, as the Commissioner has already determined by finding that section 35(1)(a) was correctly engaged in relation to this information that disclosure would, or would be likely to cause substantial prejudice to the prevention or detection of crime, given the nature of the discussion in that particular exchange, it cannot therefore be in the public interest to disclose information that could jeopardise such an investigation.
66. The Commissioner has considered the competing arguments on both sides.  While he understands the significant public interest in the conduct of Police Scotland and the Authority in relation to these different strands of work relating to Professor Eljamel, and how they are interacting with each other, he accepts that there would be a greater detriment in making it more difficult for Police Scotland or other law enforcement agencies to detect crimes, particularly in complex investigations like this one, by disclosing the information.  This would not, in the Commissioner’s view be in the public interest.  Therefore, in relation to the information that the Commissioner considers has been correctly withheld under section 35(1)(a), he finds that the public interest in maintaining the exemption outweighs that in disclosing the information. 

Decision 

The Commissioner finds that the Authority partially complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant. 

The Commissioner finds that by relying on the exemption in section 35(1)(a) for withholding some information in document 3, the Authority complied with Part 1.

However, the Commissioner finds that by failing to identify and locate all of the information that fell within the scope of the request the Authority failed to comply with part 1(1) of FOISA, and by wrongly relying on section 35(1)(a) of FOISA to withhold some information in documents 1, 2 and 4, the Authority failed to comply with Part 1. 

The Commissioner therefore requires the Authority to provide the Applicant with the information detailed in the accompanying appendix, by 15 September 2025.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.

Enforcement 

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply. The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

Euan McCulloch 

Head of Enforcement 

31 July 2025