Decision 192/2025: Correspondence between Professor Stephen Wigmore, the Scottish Government, the Police Service of Scotland and others

Authority: Scottish Ministers
Case Ref: 202500097
 

Summary

The Applicant asked the Authority for correspondence between Professor Stephen Wigmore, the Scottish Government, Police Scotland, civil servants and any other interested parties between the dates 6 June 2024 and 1 November 2024.  The Authority provided some information but withheld other information because it considered that disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views. 

The Commissioner investigated and found that some information was exempt from disclosure but ordered the Authority to disclose other information wrongly withheld. 

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 30(b)(ii) (prejudice to effective conduct of public affairs); 47(1) and (2) (Application for decision by Commissioner).

Background

1. On 1 November 2024, the Applicant made a two-part request for information to the Authority.  In the second part of his request, he asked for: 

Also, all correspondence includes but not exhaustive emails, phone calls, minutes between Professor Stephen Wigmore, Scottish Government, Police Scotland, civil servants and any other interested parties between the dates 6 June 2024 and 1 November 2024.

The first part of the request does not form part of the Applicant’s application to the Commissioner.

2. The Authority responded on 11 December 2024.  In response to the second part of his request, the Authority notified the Applicant, in terms of section 17 of FOISA, that it held no correspondence between Professor Wigmore and the Police Service of Scotland.  It provided some correspondence between Professor Wigmore and the Scottish Government covered by the period from 6 June 2024 to 1 November 2024, subject to redaction of information it considered to be exempt in line with sections 30(b)(ii), 30(c) and 38(1)(b).   
3. On 11 December 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 did not agree with the Authority’s reliance on the exemptions in sections 30(b)(ii) and 30(c) to withhold information falling within the scope of his request.  He wished to challenge its position under the public interest test and considered the information should be released to make sure patients have full transparency and trust in the Independent Clinical Review and the Public Inquiry.
4. Later on the same date, the Applicant wrote to the Authority again to add to his request for review.  He also wished the Authority to review its refusal to provide information under section 38(1)(b).  He stated his understanding and respect that the Authority redacts the names and direct contact details of Scottish Government staff below senior civil servant level, but commented that he found it difficult to comprehend that more senior civil servants would not be involved in the matter and considered the names of more senior civil servants involved in the email exchanges could be provided.
5. The Authority notified the Applicant of the outcome of its review on 14 January 2025.  The Authority advised that it had considered his challenge under the public interest test and specifically for information redacted under sections 30(b)(ii) and (c). It advised it was no longer relying on section 30(c) and was solely withholding the information under section 30(b)(ii) as it related to a free and frank exchange of views for the purposes of deliberation.  It considered that, on balance, the public interest lay in favour of maintaining the exemption and advised the Applicant of the factors it had taken into account in favour of disclosing and withholding the information when coming to this view.
6. On 14 January 2025, 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 in relation to the second part of his request, because he did not agree the exemption in section 30(b)(ii) applied and he did not consider there was any justification for the Authority to withhold the information.  He also disagreed with the Authority’s view of the public interest test.  

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 10 February 2025, 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 relying on section 30(b)(ii) to withhold some of the information falling within the scope of the Applicant’s request and why it believed the public interest favoured maintaining the exemption.   
10. The Applicant was given the opportunity to provide any further comments he would like to make.

Commissioner’s analysis and findings

11. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.
12. The information falling within the scope of the second part of the Applicant’s request comprised of three emails.  The Authority relied on section 30(b)(ii) to withhold information from only one of these three emails.  The Authority had relied on section 38(1)(b) to withhold some information from this and the other two emails but as the Applicant did not challenge the Authority’s reliance on section 38(1)(b) in his application to the Commissioner, this will not be considered in this Decision. 

Section 30(b)(ii) – free and frank exchange of views

13. Section 30(b)(ii) of FOISA provides that information is exempt information if its disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation.  The exemption is subject to the public interest test in section 2(1)(b) of FOISA.
14. In applying the exemption in section 30(b)(ii), the chief consideration is not whether the information constitutes opinions or views, but whether the disclosure of that information would, or would be likely to, inhibit substantially the free and frank exchange of views.  The inhibition must be substantial and therefore of real and demonstrable significance.
15. Each request must be considered on a case-by-case basis, taking into account the effect (or likely effect) of disclosure of that particular information on the future exchange of views.  The content of the withheld information will need to be considered, taking into account factors such as its nature, subject matter, manner of expression, and also whether the timing of disclosure would have any bearing.
16. As with other exemptions involving a similar test, the Commissioner expects authorities to demonstrate a real risk or likelihood that actual inhibition will occur at some time in the near future, not simply a remote or hypothetical possibility. 

The Authority’s submissions 

17. The Authority stated that the email chain from October 2024 referred to a newspaper article that it did not hold but was available online[1].
18. The Authority considered that disclosure of the withheld information contained within exchanges between it and the Chair to the Independent Clinical Review[2] (ICR) could affect the continuance of the ICR.  It considered that the content was an immediate reaction to an unexpected article in the media that focused on the Chair of the ICR personally.
19. The Authority’s view was that it was essential that the Chair of the ICR was able to communicate, often in confidence, with the Authority on a range of issues, including candid concerns.  It believed disclosing the content of these communications, particularly without Professor Wigmore’s consent, risked undermining his trust in the Authority and would substantially inhibit communications of this type in the future. It considered disclosure may make the Chair reluctant to provide his views fully and frankly, if he believed they were likely to be made public prematurely.   
20. The Authority noted that the Chair was a practising surgeon who communicated with its officials where needed in his role as Chair of the ICR.  It considered it imperative for the effective conduct and successful completion of the ICR that the Chair was able to do this freely and frankly and that risking his ability to do this and impeding his confidence in doing so quickly also risked impacting negatively on the ICR’s work. It believed protecting this private space allowed the Chair to communicate effectively when situations arose that needed the Authority’s attention or awareness and that he should be able to do express his candid concerns at this stage without risk of them being prematurely released.
21. The Authority also expressed its concern that the relationship between the ICR and the former patients of Sam Eljamel may be substantially damaged if the information were to be disclosed and that this would substantially harm the ICR’s ability to conduct the Review.  Its view was that disclosure may mean former patients chose not to engage with the process at all and thus lose the opportunity to find whatever resolution may be possible through clinical review by independent neurologists.
22. The Authority stated its awareness that the former patients being served by the ICR are people whose trust in the public sector and public service may already have been diminished through their experience.
23. The Authority expressed concern that should former patients lose faith in the Chair personally, from disclosure of the information, it would likely be very difficult to find a comparably qualified alternative Chair to lead the process, which could result in the same threat to the effective conduct of the ICR.
24. The Authority stated that in addition to the information outlined above on how the Chair could be substantially inhibited by disclosure, this risked also being true of the support staff and reviewing neurosurgeons.  It noted that if there is inhibition on free, frank and speedy communication this could well have resultant impact on the public inquiry, insofar as it will rely in part upon the work of the ICR.
25. In answer to a question from the investigating officer about whether Professor Wigmore’s views had been sought, the Authority did this during the investigation and provided his response.   Professor Wigmore considered disclosure could do more harm to the public interest than any possible benefit and that he had no objection to the material being made publicly available in the future once the ICR has concluded if that was helpful.

The Applicant's submissions 

26. The Applicant disagreed that the exemption in section 30(b)(ii) applied as patients had been led to believe that these Clinical Reviews led by Professor Wigmore were totally independent without any political interference.  His view was that this appeared not to be the case and that evidence showed discussions had been going on between Professor Wigmore and the Authority.  He stated he had discovered that Police Scotland and the Authority were asked to “join up resources” with them in relation to the Wigmore Clinical Reviews and asked what these “resources” were.  He considered there needed to be full transparency. 

The Commissioner's view 

27. The Commissioner has considered all of the submissions made to him by both the Authority and the Applicant, as well as the content of the withheld information under consideration.
28. As the Commissioner noted before, in order for this exemption to be engaged, disclosure of the withheld information would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation.  In this context, “inhibit” means to restrain, decrease or supress the freedom with which opinions or options are expressed.
29. The Commissioner has determined that this exemption cannot be upheld with regard to some of the withheld information in document 1.
30. Having considered the context of some of the information withheld in document 1, the Commissioner does not agree that disclosure of this particular information would prevent other professionals from contributing to the ICR, or discourage Professor Wigmore from sharing his views.  Particularly as this seems to reflect a settled view on a specific aspect.  Furthermore, rather than undermining or leading to a loss of trust from patients through disclosure of this information, the Commissioner considers that its disclosure may in fact improve the trust and faith patients have in the process of the ICR.
31. As the Commissioner finds that the exemption is not engaged, he requires the Authority to disclose the information that he has found to not be exempt under section 30(b)(ii) to the Applicant.  The Commissioner will provide the Authority with guidance on the specific information to be disclosed.
32. The Commissioner accepts that the exemption has been correctly engaged for the remainder of the information withheld in document 1.  He accepts that a private space is required to discuss matters freely and frankly, particularly when those matters are of a sensitive nature. 
33. The Commissioner considers that disclosure of the remaining information would, or would be likely to dissuade Professor Wigmore or others from openly expressing their thoughts and concerns, which would be to the detriment of the ICR.
34. The Commissioner also accepts that disclosure of this information may lead to a breakdown in trust between the Authority and Professor Wigmore, as well as a loss of patient confidence and trust – which is also likely to be detrimental to the effective conduct of the ICR.
35. As the Commissioner finds that disclosure of this information would be likely to inhibit the free and frank exchange of views for the purposes of deliberation, he is satisfied that this information is exempt from disclosure under section 30(b)(ii).  He will now go on to consider the public interest test in section 2(1)(b). 

The public interest test 

36. The exemption in section 30(b)(ii) is subject to the public interest test in section 2(1)(b).  Where this exemption is correctly applied, the Commissioner must consider whether, in all the circumstances of the case, the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.

The authority’s submissions about the public interest

37. The Authority recognised there was a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. It also acknowledged the public interest in the ICR.
38. However, it considered there was a greater public interest in allowing a private space within which it could obtain full and frank views from key stakeholders, and from Professor Wigmore, on matters that it should be made aware of in relation to the ICR.  Its view was that this space was essential to allow candid communication, where necessary, without the risk of this being made public before the conclusion of the ICR.  It also noted that it would not be in the public interest to damage its relationship with Professor Wigmore and undermine his trust in the Authority through disclosure of information that could prejudice his work.
39. The Authority believed disclosure may well threaten the continued and future stability and progress of the ICR.  It considered it important that the public had confidence in this process and was concerned disclosure could prejudice this.  Furthermore, it noted that should the stability of the ICR be threatened, those particular individual harmed patients who are awaiting their clinical reviews could face further delays, which would not be in the public interest.
40. Therefore, taking account of all the circumstances of this case, the Authority considered that the public interest in disclosing the information was outweighed by the public interest in applying the exemption.

The Applicant's submissions about the public interest

41. The Applicant disagreed with the Authority’s reliance on the public interest to withhold the information he had requested.  In his view patients who had suffered at the hands of Sam Eljamel had the right to know what was going on and that nothing underhand was taking place with the Authority, Professor Wigmore and others.  He believed patients must have full transparency and trust in these Independent Clinical Reviews and in the Public Inquiry into this surgeon. He considered there was an increasing concern among patients and the public and a deep mistrust in the ICR that vital information was being withheld. 

The Commissioner's view on the public interest 

42. The Commissioner has considered all of the arguments presented to him in relation to the public interest.
43. The Commissioner recognises that the subject matter at the core 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 and have an interest in how matters relating to clinicians and clinical care are overseen. As such, he acknowledges there is a significant public interest in openness and transparency, which includes an understanding of the relationship between the Authority, Professor Wigmore, Police Scotland, and others in respect of the ICR.   
44. The ICR and Public Inquiry referred to by the Applicant have both been long awaited by former patients of Mr Eljamel and these former patients are anxious for them to progress.   
45. However, he also recognises that openness and candour in the exchange of views is also in the public interest, particularly if inhibiting this would affect the effectiveness of the ICR.
46. The Commissioner considers that the wider public interest in ensuring that the ICR proceeds without limiting or inhibiting the full participation and cooperation of the contributing experts and/or Professor Wigmore outweighs the public interest in disclosing the remaining information in document 1.
47. Therefore, the Commissioner finds that the public interest in disclosing the withheld information is outweighed by that in maintaining the exemption in section 30(b)(ii) of FOISA. Consequently, he is satisfied that the Authority has correctly withheld some information in document 1.

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 section 30(b)(ii) to withhold some information in document 1, the Authority complied with Part 1.

However, by wrongly withholding other information in document 1 under section 30(b)(ii) of FOISA, the Authority failed to comply with Part 1 (specifically section 1(1)). 

The Commissioner therefore requires the Authority to provide the Applicant with the information wrongly withheld, 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