Transcript of Module 2A Public Hearing on 19 January 2024

(10.00 am)

Lady Hallett: Mr Dawson.

Mr Dawson: Good morning, my Lady. The first witness this morning is Ms Lesley Fraser.

1. Ms Lesley Fraser

MS LESLEY FRASER (affirmed).

Questions From Lead Counsel to the Inquiry for Module 2A

Mr Dawson: Good morning. You are Lesley Fraser?

Ms Lesley Fraser: I am.

Lead 2A: You have provided us with a number of statements for the Inquiry so far, thank you very much for having done so. If I could just run through them quickly in order –

Ms Lesley Fraser: Yes.

Lead 2A: – that the references can be put on the transcript for those who are interested to read them. You provided a witness statement dated 23 October 2023 which is INQ000320588. You provided a second statement as a corporate statement as Director General of corporate, which has the reference INQ000215474. That’s dated 23 June 2023. You then provided an addendum witness statement in that capacity as director on 6 November of this year, INQ000340111.

A further statement, again in that capacity, on 9 November of this year, INQ000340122. Then finally, again in that capacity, a further statement on 4 January 2024, INQ000391307. You have signed all of these statements, as I understand it; is that correct?

Ms Lesley Fraser: I have, yes.

Lead 2A: You’re familiar with their contents?

Ms Lesley Fraser: I am.

Lead 2A: Do the contents of these statements remain true and accurate as far as you’re concerned?

Ms Lesley Fraser: They do.

Lead 2A: Thank you.

You are the Director General of the Corporate directorate general within the Scottish Government and a full-time civil servant; is that correct?

Ms Lesley Fraser: I am.

Lead 2A: You’ve held that role since March 2021?

Ms Lesley Fraser: Yes.

Lead 2A: And you originally joined the Scottish Government as a civil servant in 2001; is that correct?

Ms Lesley Fraser: That’s correct, yes.

Lead 2A: You explain in some of your statements that the Director General Corporate is responsible for the corporate services required by the Scottish Government, which includes, amongst other things, corporate governance, legal propriety and ethics, and also you’re responsible for the Covid Inquiries Response Directorate. Is all that correct?

Ms Lesley Fraser: All of that is correct, yes.

Lead 2A: Thank you.

The Covid Inquiries Response Directorate, as I understand it, is a directorate within the Scottish Government which co-ordinates the Scottish Government’s response to this Inquiry and indeed to the Scottish Inquiry?

Ms Lesley Fraser: That’s correct, yes.

Lead 2A: I’d like to ask you some questions this morning about a number of documents and practices relating to document retention within the Scottish Government.

Ms Lesley Fraser: Yes.

Lead 2A: As I understand it, this is a matter which falls within your ambit as the Director-General Corporate?

Ms Lesley Fraser: It is, so I am responsible for all aspects of record-keeping but I’m also the senior information risk owner for the organisation, which carries its own responsibilities as well, but all that general area falls within my ambit.

Lead 2A: Thank you very much.

Could I just have the 9 November statement, INQ000340122. You say in paragraph 1 of that statement that:

“The Scottish Government has established policies and guidance in place to support effective information governance and records management. The Scottish Government is committed to openness and transparency, and to cooperating fully with both the UK and Scottish Covid-19 Inquiries.”

Is that correct?

Ms Lesley Fraser: It is correct, yes.

Lead 2A: The current First Minister of Scotland, and indeed the former First Minister of Scotland, Nicola Sturgeon, have repeatedly committed to these important values as well, including statements made in Parliament to that effect; is that correct?

Ms Lesley Fraser: That is correct.

Lead 2A: These values of accountability and transparency represent a bond of honesty with the people of Scotland; is that correct?

Ms Lesley Fraser: That is correct, they’re absolutely fundamental to good government, and a key responsibility as a civil servant, being able to transparently explain what the government has done and why it has done it and how it has done it, and demonstrate that through the record, is fundamentally important to good government.

Lead 2A: And as such, I think it’s correct to say that these principles of openness and transparency and indeed accountability are embedded within the National Performance Framework, about which we heard a little from Professor Cairney yesterday; is that correct?

Ms Lesley Fraser: They are in the National Performance Framework, yes, but they’re in other places as well. So you’ll see them in, for example, the Public Records (Scotland) Act 2011, which we are responsible for complying with, and in a range of other areas as well. So it – it’s fundamental to, as I say, how we operate as civil servants in the Civil Service Code, also referred to in the Ministerial Code as well. So cuts in all ways, but everybody is responsible and accountable for that openness, transparency and accountability.

Lead 2A: Thank you.

I think in fact one sees these principles laid out in a number of key documents relating to the Covid-19 response. For example, the framework which is called the four harms framework, from April 2020, and other such documents.

Ms Lesley Fraser: Yes, exactly so. So the four harms framework is setting out how the government would seek to balance what were recognised to be real harms that were happening across society through this, you know, tragic and unprecedented set of circumstances. But to illustrate that to the public and indeed of course to Parliament and to others who would rightly scrutinise us, so that we could be held to account for the way in which we were endeavouring to respond.

Lead 2A: When government decisions are taken, it’s important that the people are able to understand how, when, why and by whom those decisions were taken?

Ms Lesley Fraser: Fundamentally so, and of course we’re accountable – or rather ministers are directly accountable to the Scottish Parliament and it was critical throughout the pandemic that we had a record of, as you say, who, what, why, when, how. We were regularly sharing that with the Parliament, and Parliament was therefore able to hold ministers to account in live time for the way in which the conduct of the response to the pandemic was being undertaken.

Lead 2A: As regards accountability, it’s hard perhaps to achieve accountability if inadequate records of these matters are retained?

Ms Lesley Fraser: Precisely so, and that’s why it’s a legal responsibility on the government to maintain a proper record and to be able to account for decisions and how those were reached, and to be able to demonstrate that through the public record. And we produce a plan and regularly review that, at least annually, and that is then overseen by the Keeper of the Records of Scotland, who has a legal responsibility to ensure that we are conducting ourselves lawfully in respect of our records management approach.

Lead 2A: Obviously from our perspective we are looking back on a period of time in the past –

Ms Lesley Fraser: Yes.

Lead 2A: – and records such as the ones we’re talking about are relevant to our investigation. But is it not also the case that these records are important when dealing with a situation like the pandemic, which is a continuous one, rather than a single incident, to be able to access records of the kind we have been discussing in order to inform continuous decision-making?

Ms Lesley Fraser: Absolutely. As I say, it’s fundamental to good government. You need to be able to set out what it is that, of course, ministers have asked for advice on and then demonstrate the way in which that advice has been brought together, and you need to be able to explain and demonstrate how perhaps challenging and different perspectives have been reconciled or brought to ministers’ attention, and therefore – and then you also need to be able to demonstrate the way in which ministers have considered that advice and then ultimately reached a decision, and then of course what the government has done about it, what the impact has been, and so on. You need to be able to demonstrate that process.

Lead 2A: I think it would be fair to say, however, would it not, Ms Fraser, that it would be overly burdensome on an organisation like the Scottish Government if one were to suggest they should retain every piece of paper and every electronic piece of documentation relating to its business?

Ms Lesley Fraser: Absolutely. We could not possibly retain absolutely everything. For example, I think in relation to the handling of the Covid pandemic we have well in excess of a million emails, for example. Now, much of those will be, you know, inconsequential. The job of records management is to ensure that the core elements, all of the relevant information, including when there are disputes and when things need to be reconciled or you need to change course, for example, that all of that is set out and it’s clear then to either, for example, a Parliamentary committee looking in pretty live time at what’s going on, that you can demonstrate what has happened; or, as now, that some years since, you can then go back and look at the record and understand how that journey has been undertaken.

Lead 2A: In order to achieve a balance between retaining an impossible amount of documentation and documentation of the type that we have been discussing, would it be fair to say that the government and those working for it should be required to consider the kinds of matters we’ve discussed, the principal aim being that the Scottish public is able to access information which tell them, reasonably, why decisions were taken, by whom decisions were taken, how decisions were taken, when decisions were taken?

Ms Lesley Fraser: Exactly so, and we give guidance through our Records Management Policy and Plan and through training, which is mandatory for all civil servants, and regularly renewed. We also have a direct responsibility on directors in the Scottish Government to ensure that their teams are acting in accordance with Records Management Policy. So that’s where the guidance would be found for civil servants seeking to understand, as you say, how you assemble correctly the full record for – yeah, for inquiries like this, for Parliament, for all the purposes of government.

Lead 2A: I understand, we will come to it in a moment, that there are a number of policies which relate to this subject which existed and were current around about our two and a bit year scope. You are generally responsible for those policies; is that –

Ms Lesley Fraser: I am indeed, yes.

Lead 2A: And responsible for ensuring that they are complied with?

Ms Lesley Fraser: Yes. I share that responsibility for compliance with my fellow directors general. As I say, the way that – because we’re an organisation of 10,000 civil servants, then directors have an accountability for ensuring that Records Management Policy and other policies are fully complied with in their area. And directors then account on an annual basis for compliance through what we call a certificates of assurance process. So that’s one way in which compliance would be assured.

I also oversee an information governance board for the Scottish Government, and there we look at the ways in which we are encouraging and improving records management across the Scottish Government, where we need to pay particular attention, what needs to be changed in processes that we might have in place.

Obviously it’s not an issue that ever stands still, technology keeps moving on, and there are new questions and challenges as well that mean that we need to adapt and change our records management approach, but the fundamentals still persist.

Lead 2A: Because as far as compliance is concerned, it wouldn’t really serve a great deal of purpose to have policies if efforts were not make to seek that they were complied with on behalf of the government, its directors and other senior officials?

Ms Lesley Fraser: Correct, we’d rely on that compliance in order to be able to create that accurate record, as we are legally required to do.

Lead 2A: We’ll come to some of these policies in a moment, Ms Fraser, but as you are responsible for the Covid Inquiries Response Directorate, we have received a number of these policies in what might, I think, fairly be described as something of a piecemeal fashion. In particular, we issued an original corporate request to you for information, including relating to document use, informal use of documents in the management of the pandemic, and we received a single policy in response to that which was dated November 2021. We’ll come to that policy in a moment.

We then required to issue a further Rule 9 request seeking greater information, and this over time resulted in a number of further policies becoming apparent and, indeed, we received some policies from you only in the last couple of days. I think they were directly from you, actually, as I understand it.

Can you please tell us why it is that it has been so difficult, given your responsibility for the Response Directorate, to get the policies that we asked for some time ago?

Ms Lesley Fraser: Well, I’m sorry if it has appeared to the Inquiry and indeed to others involved in this process that that has been difficult or complex. That is absolutely not our intention. We’ve endeavoured throughout to give the Inquiry as well and as quickly as we can precisely the documents that you’ve been looking for.

The fundamental document here is our Records Management Policy. The November 2021 document that you refer to is a – if you like, a supplement to that that explains in a bit more – a bit more clearly and precisely how to treat information, mobile messaging, and –

Lead 2A: We’ll get on to the detail in a moment, Ms Fraser.

Ms Lesley Fraser: Okay, very good.

Lead 2A: Is the reason why these documents were produced in this piecemeal fashion that those charged with locating them had difficulty locating them?

Ms Lesley Fraser: No, I don’t think we’ve had difficulty locating them. I think our understanding of the focus and requirements of the Inquiry has very much developed over time as, I think, the Inquiry has become more and more specific in your requests of us. The reason why we provided or I provided documents to the Inquiry earlier this week is because of a different set of searches that we had undertaken in relation to a Freedom of Information request which brought up a much longer document which was produced – well, not a document actually, a Saltire article. Saltire is the intranet for Scottish Government employees. And we produced an article in April 2020, as our colleagues were moving out of the office – I think 97% of people were office-based before the pandemic, and that switched entirely, obviously, with lockdown, and this pulled together a whole host of useful information. You know, how to negotiate with your broadband, you know, provider, how to get new technology if you needed it, how to get an adjustable chair, a whole range of things. But it also said in terms of staying in touch – and we were thinking about people’s personal wellbeing, but also the business contacts that people have – we were recognising that applications like Zoom as well as WhatsApp were much more prevalent and people were adapting and finding ways to –

Lady Hallett: To go back to the point Mr Dawson was pursuing, the Inquiry asked you for various policies –

Ms Lesley Fraser: Yes.

Lady Hallett: – and you’ve just said a few minutes ago said there was one fundamental policy: the Records Management Policy.

Ms Lesley Fraser: Yes.

Lady Hallett: But instead of sending the one fundamental policy, which we’d have thought it was easy to find – someone would just say, “There’s our one fundamental policy, off to the Inquiry”, you sent the 2021 policy that was about something else. So why was it a member of your team couldn’t find the fundamental policy to send to the Inquiry when first asked?

Ms Lesley Fraser: I’m sorry, my Lady, I understood that we had provided the Records Management Policy in good time to the Inquiry. I’ve certainly been conscious of referring to that from my statements from certainly last summer, I would have expected that to be on any of my statements.

Lady Hallett: It may be I’ve misunderstood, Mr Dawson.

Mr Dawson: No, my understanding, my Lady, was that the policy that was provided originally was the November 2021 policy, and that the policy to which Ms Fraser is making reference was provided at a later date in response to a further request.

Ms Lesley Fraser: That is a surprise to me. I’m –

Lady Hallett: Well, it would be surprising, wouldn’t it?

Ms Lesley Fraser: It would be very surprising. I would understand that that would have been provided with my witness statements last year. But can I check that point, my Lady?

Lady Hallett: And also we’ll get the team to check it as well.

Ms Lesley Fraser: Okay, thank you.

Mr Dawson: If it were the case that one had difficulty locating document retention policies, it might tend to suggest that document retention doesn’t work very well in the Scottish Government; would that be fair?

Ms Lesley Fraser: The Records Management Policy is readily available to colleagues, it’s on our intranet site, we train people on it on a regular basis, my colleagues and I myself, we must take mandatory annual training. On aspects of data handling, for example, the Records Management Policy is referred to through that, so – in fact I’m pretty certain it’s published on our website as well. So it’s a legal requirement that we have a Records Management Policy and a Records Management Plan, and that that is approved by the Keeper of the Records of Scotland. So it’s not a new thing, and it’s absolutely fundamental to the way that we operate.

Lead 2A: Okay, thank you.

Can we perhaps look at the policy, it is INQ000309551.

I understand this is the Scottish Government Records Management Policy. I think this is the one to which you made reference as being the go-to document; is that right?

Ms Lesley Fraser: That is the one, yes.

Lead 2A: There is an October 2019 version, which is the one we see here.

Ms Lesley Fraser: Yes.

Lead 2A: I understand it may have been updated in September 2020 is that right?

Ms Lesley Fraser: We regularly update it, generally on an annual basis, and it’s reviewed at least every five years by the Keeper of the Records of Scotland, yeah.

Lead 2A: But this one would have been the one that would have been current at the time of the –

Ms Lesley Fraser: Yes.

Lead 2A: – period we’re interested in, the beginning of 2020?

Ms Lesley Fraser: Exactly so.

Lead 2A: Could we go to page 3, please. If we see at the top of the page there it says:

“The Scottish Government handles a very large amount of information. This information relates to specific topics and individuals as well as records of decisions made by the Government, actions taken and the rationale behind these decisions. The Scottish Government recognises that its records are an important public asset and are a key resource in the effective operation, policy making and accountability of the Scottish Government. Like any asset, records require careful management and this policy sets out the Scottish Government’s responsibilities and activities in respect of this.”

Just go back to the original document, jump down a little bit further. Under “Scope ‘“it says:

“All employees of the Scottish Government have a responsibility to effectively manage records in accordance with specified legislation and guidelines.”

In the next section:

“This policy applies to all records created, received or maintained by Scottish Government staff in the course of carrying out their functions.”

It also helps us with the definition, which says:

“A record is a piece of recorded information or document, regardless of format, which facilitates the activities and the business carried out by the Government and which is thereafter retained for a set period to provide evidence of a transaction or decision carried out by or on behalf of the Government. Records may be created, received or maintained in hard copy or electronically. Emails, SMS messages, tweets, documents, sound recordings and videos may all be records.”

The policy says that employees of the government have to retain evidence of transactions or decisions carried out “by or on behalf of … Government”?

Ms Lesley Fraser: That’s correct.

Lead 2A: Things done on behalf of government may include making decisions, taking action, and the forming of a rationale behind those decisions; is that correct?

Ms Lesley Fraser: That’s correct.

Lead 2A: Would all of those things be deemed to be part of transactions or decisions on behalf of the Scottish Government?

Ms Lesley Fraser: They would all be considered relevant, yes.

Lead 2A: This policy does not mention WhatsApps or specifically other electronic information, does it?

Ms Lesley Fraser: It talks about emails, SMS messages, tweets, so it’s drawing – and I guess in October 2019 WhatsApp was perhaps not as prevalent at that point as it subsequently became, and I think by the time we get to September 2020, so a year later, WhatsApp is then included in this list.

Lead 2A: We’ll get to that, Ms Fraser. But the important point I think is that – what I think we have tried to do is cast the net as widely as possible, to cover all forms of communication which may become prevalent in the prac –

Ms Lesley Fraser: Exactly so, yeah.

Lead 2A: – of the various ministers and employees; yes?

Ms Lesley Fraser: Yes.

Lead 2A: It states that it’s important to retain records relating to the business of government.

Ms Lesley Fraser: Yes.

Lead 2A: And the business of government contains and creates information which it records about the business of government; is that right?

Ms Lesley Fraser: Yes.

Lead 2A: And this information includes records of not only decisions but, as I think we’ve covered, actions taken and the rationale behind those decisions?

Ms Lesley Fraser: Yes.

Lead 2A: As well as how those decisions were reached?

Ms Lesley Fraser: Yes.

Lead 2A: Thank you.

Could we then go to INQ000274180. Now, as I understand it, this is one of the documents that you were able to provide to us just in the last couple of days. Is that right?

Ms Lesley Fraser: That’s correct, that’s the document – well, it’s a snapshot of what was on our intranet site as guidance for colleagues.

Lead 2A: Indeed, and I think as you told us earlier, this was text that was published on the Scottish Government intranet, I think you called it Saltire?

Ms Lesley Fraser: Saltire we call it, yes.

Lead 2A: In April 2020, as guidance or a policy to assist with working from home; is that right?

Ms Lesley Fraser: Yes, I wouldn’t say it was policy. It’s much more up-to-the-minute guidance for people who are moving from working in the office to moving to working at home. So it is covering things like how to log on, what to do if you can’t get your password to work, all of the things that people would have gone to maybe a person in the office to deal with, and we were now explaining how you can do that when everybody is working from home.

Lead 2A: So this was one of the events that I think you contemplated earlier, where there is still the general policy that we’ve discussed, but this was attempting to try to deal with the particular circumstances that prevailed at the time?

Ms Lesley Fraser: This is a lot of questions that are coming in to us, quite understandably, and we’re endeavouring to pull lots of information together in a single useful place where people can click on links and get that advice.

Lead 2A: If we go to page 8, please, it says under the blue passage:

“Keeping in touch with colleagues and having social and business contacts during this time is vitally important. Apps like Zoom, Slack and WhatsApp can be downloaded on your SCOTS mobile, but must be used in a responsible, professional manner. When using them remember:

“- apps are for official info only

“- messages are only encrypted when in transit – as soon as they arrive on your device it depends on your security settings

“- messages are subject to Freedom of Information

(FOI)

Lead 2A: “– messages should be transitory and not used as the official record

“- messages should be deleted as soon as they are no longer needed.”

The guidance to Scottish Government officials encourages the deletion of messages which might relate to business, doesn’t it?

Ms Lesley Fraser: It tells people, it’s – this is quite shorthand, I would say, so when it says apps are for official information only, that is actually referring, for example, to our security settings. So nothing above official level, so sensitive information or secret information, for example, can be used.

It’s pointing –

Lead 2A: I was focusing slightly more on the final bullet point, Ms Fraser.

Ms Lesley Fraser: Yes, but I think the second to last bullet point is important as well. So they’re – they’re transitory, and they’re not the official record, therefore you need to write the relevant information into the official record, which is what the Records Management Policy requires you to do, and we are rightly pointing out to colleagues that they are subject to Freedom of Information as well.

Lead 2A: Is it clear here that matters require to be written into the official record, as you said, before they are deleted?

Ms Lesley Fraser: That is – because we’re talking about them being transitory and not the official record, that implies to me that therefore they must be written into the official record if they’re relevant to government business.

Lead 2A: Is your position that it is clear?

Ms Lesley Fraser: I think in the context of this, which is a section about connecting with colleagues, yes, that is implied and clear to experienced civil servants.

Lead 2A: The requirement to write it into the official record comes from the first document we looked at, isn’t that right?

Ms Lesley Fraser: It comes from that document, but it comes from the way of working, as a civil servant. Government cannot operate unless civil servants are writing the relevant information onto the corporate record, and it’s searchable, we can look at it when we’re taking forward policy, we can respond to queries and requests, scrutiny in Parliament, Freedom of Information, for example, so the whole way in which government works depends on civil servants ensuring that information is on the record at the earliest opportunity.

Lead 2A: Would this also apply to ministers, surely, as well?

Ms Lesley Fraser: Ministers are not subject to our Records Management Policy, that is a matter for civil servants, so ministers, for example, don’t have access to our electronic records management system directly, they could not write information on to the record.

Ministers work with their private offices, and when a minister comes into office, their private office explains to them how decision-making, the transfer of their views to other ministers or to stakeholders or to policy officials will happen. That private office will explain that if a minister has a meeting without private office being present, for example, then that information must be relayed to private office at the earliest opportunity so that private office can, one, act on it, and two, also record that for the record. Because, again, what ministers are doing is of fundamental importance and interest not just to Government but to Parliament and to others who want to scrutinise our activities.

Lead 2A: But these rules that we are looking at must also apply to ministers by extension, is that not correct?

Ms Lesley Fraser: Ministers are required under the Ministerial Code to work positively and productively with the civil service, and they must – it’s clear in the Ministerial Code, for example, that should they have meetings where civil servants are not present, they must relay that to their private office and – you know, so that the relevant actions can be taken, including the information recorded to the record, and –

Lead 2A: Simply put, do these rules apply to ministers? The reason I’m asking is because we have asked the Scottish Government for its policies relating to the way in which information requires to be retained –

Ms Lesley Fraser: Yes.

Lead 2A: – for these purposes in its key decision-makers, including ministers and senior advisers.

Ms Lesley Fraser: Indeed.

Lead 2A: So are there policies we have not seen that relate to ministers?

Ms Lesley Fraser: No, there are not. It’s – what I’m trying to explain is it’s the civil servants who have the responsibility for record-keeping and not ministers directly. Ministers have a different set of responsibilities about how they work with their private offices, and their private offices have that very important responsibility for ensuring that the actions of their minister and the communications from their minister are then recorded in the record. So I’m just trying to draw that distinction between responsibilities.

Lead 2A: I understand. So if ministers were to refer to these policies as their understanding of the rules that pertained to them, would they be wrong?

Ms Lesley Fraser: They’re not wrong, because they provide good, you know, guidance and advice, which ministers –

Lead 2A: But surely, Ms Fraser, not for them, you’re telling me?

Ms Lesley Fraser: Not directly for them in relation to the retention of records on the corporate records system of the Scottish Government, but it provides good guidance and advice in terms of, for example, how you would treat WhatsApp messages on your private phone if they were relevant to government business.

Lead 2A: If I were a minister at the beginning of the pandemic, keen to know how I would comply with my obligations, if this policy doesn’t apply to me, surely I wouldn’t look at it?

Ms Lesley Fraser: You would be made aware of the relevant aspects that – and as they do apply to ministers by your private office. So that’s a responsibility of private office and then a responsibility of ministers to work well and productively, including the transfer of information to private office so that it can be retained on the record.

Lead 2A: Where can we see for ministers the obligations defined in this regard with this degree of specification from this period?

Ms Lesley Fraser: I’m sorry, I didn’t quite …

Lead 2A: Where can we see applying to ministers the guidance pertaining to their obligations about the retention of records with this degree of specification?

Ms Lesley Fraser: So this degree of specification would be well known and indeed was discussed with ministerial private offices, and ministerial private offices are then supported to be able to have the conversations and the discussions with their ministers about how they will then work.

There’s of course a degree of personal preference about how ministers choose to work with the civil service and choose to work with their private office, but the fundamental points about ensuring that the relevant information is then transferred into email, into the records system, is the critical one, and ministerial private office do that, working with their ministers.

Ministers would have been able to see the mobile messaging policy, it’s not a secret policy. It’s written from the perspective of civil servants because civil servants are the ones with the responsibility, but the good practice guidance would equally apply to ministers.

Lead 2A: Is the good practice guidance a different document that we haven’t seen?

Ms Lesley Fraser: No, no, it’s contained, not in this document that we have in front of us here, but in the mobile messaging policy in 2021.

Lead 2A: There were a number of press articles in 2023 when matters pertaining to retention of documents became a live issue being addressed by the Scottish Government where former ministers, including former Health Minister Alex Neil, suggested that when he was in office he frankly couldn’t understand the policies as to document retention. Is it really surprising that ministers are in that position, given the fact that what you have told us is that these policies relate to civil servants and that there is some more general obligation, poorly defined it seems, relating to ministers?

Ms Lesley Fraser: I would say that the obligation on ministers is not poorly defined, I think it is very clearly defined in the Ministerial Code that they have a responsibility and accountability to let their private office know at the earliest opportunity of meetings and discussions that they have that are relevant to government business, that where a civil servant is not present – if a civil servant is present then it’s the responsibility of the civil servant to take that note.

I think Mr Neil left office in 2016, so potentially arguably before WhatsApp, for example, became prevalent as a means of informal communication, but Mr Neil would at the time have had advice before 2016 about how to work with his private office and ensure that his meetings, decisions, views were then transferred into the record and were acted on by the civil service.

Lead 2A: You’ve said on a number of occasions that private offices would do things with regard to speaking to ministers about their obligations. Do you know that that is the case, that that happened?

Ms Lesley Fraser: I do know that that is the case, yes.

Lead 2A: It’s your job, I think, to oversee that to a certain –

Ms Lesley Fraser: Ministerial private offices sit within my area of responsibility. So, for example, I know that as part of the induction process for new ministers after the May 2021 election, we specifically spoke to ministers about record – well, handling data and information well and looking after data securely, and that was part of the induction process for ministers.

Fundamentally, and I think actually the Deputy First Minister referred to this in particle, if ministers don’t tell their private office about every aspect of what they’ve done, nothing in government will happen. Ministers may talk to each other or talk to a stakeholder; if that’s not relayed, then no action will be taken by the civil service.

Lead 2A: What you’re telling me is during the period with which we are concerned, ministers were definitely told by their private offices that they required to comply with these policies as regards not only general documentation and information, but the specific types of electronic communications that we have mentioned here?

Ms Lesley Fraser: We would have said – well, ministers would be aware of the necessity of talking to their private office, as I’ve said. The level of specification about WhatsApp and the mobile messaging policy was something that was developed towards the end of November 2021, so at that point we would have been discussing that across our organisation, and at that point private offices would be aware of that and discussing it.

I think actually in my evidence pack I did see an exchange between a private office and a minister where they were discussing precisely this in, at the beginning of January 2022. So that gives me again just a second check that indeed this was being discussed.

Lady Hallett: Ms Fraser, I’m afraid I’m not following. I’m a minister and I’m talking to Mr Dawson, who’s another minister, in a WhatsApp message and no civil servant is part of the group.

Ms Lesley Fraser: Yes.

Lady Hallett: What am I or what is Mr Dawson told to do with our WhatsApp messages? In clear terms, what are we told? Are we told, in accordance with this policy – that seems to be delete them when they’re not needed, or are we told to keep them, are we told to tell the civil servants – our private office about them?

What are we told? In clear terms.

Ms Lesley Fraser: Assuming that this is about government business?

Lady Hallett: Yes.

Ms Lesley Fraser: Yes.

Lady Hallett: Well, chances are if I’m a minister and Mr Dawson is a minister it will be, isn’t that right? Unless we’re talking about having a cup of tea, I suppose, but …

Ms Lesley Fraser: You could be having a cup of tea or it could be party business. But assuming it’s government business, then you would agree, right, I’ll tell my private office to do X, Y or Z as a result of the conversation that we’ve had, and that is the general way in which information that is perhaps discussed between ministers would be relayed to the civil service so that action could be taken.

Lady Hallett: But that may not record the rationale which Mr Dawson got you to agree is one of the things that ought to be recorded, that would just be recording the actions to be taken as a result of our decision.

So in other words, things could get lost if the ministers delete their WhatsApp messages without telling private office everything that was discussed or send it – forwarding them to private office.

Ms Lesley Fraser: Mr Dawson was talking to me earlier about the process of agreeing what’s relevant government business here, so ministers couldn’t, for example, meet and – you know, without civil servants in the room, and say “We are determining to set up a new grant scheme here, right, I’ll tell my private office, a new grant scheme will be set up”, impossible to do that, because there’s a whole set of other checks and balances about the expenditure of public money, about the value for money test, about accountable officer responsibilities.

So a minister would say “I’ve spoken to my colleague, we’d be interested in advice on setting up a grant scheme that could do this, will you please get me the relevant advice”, and private office would then say “Ministers have spoken, they’re keen to do this, can officials please provide the advice”.

Now all of that then is part of the official systems of the Scottish Government. That is generally handled on email, that’s where decisions and advice from ministerial offices comes from, and then the civil service will provide that advice and that is where the decision then would be assessed and taken.

Lady Hallett: I’ll leave Mr Dawson to pursue that.

Can I just pursue one other question that I had in relation to the passage we had highlighted:

“- apps are for official info only”

You said you thought it was clear to experienced civil servants – of course not all civil servants are necessarily as experienced as you are – but I confess that I don’t find these rules or principles clear. If messages are subject to Freedom of Information requests, my immediate instinct would be to say, “Well, if it’s going to be subject to an FOI then I’ve got to keep it”, yet the final passage says “messages should be deleted as soon as they are no longer needed”. That seems to conflict with the fact that they need to be kept in case somebody, a representative of the media makes, say, a Freedom of Information request. Is that clear? I don’t think that’s clear.

Ms Lesley Fraser: This is a snapshot of a much longer document which relates to a whole set of issues for people moving home and working from home when they have been working online, and this is a section about connecting with colleagues, both personal colleagues and business colleagues. The “apps are for official [information] only” certainly says to me that’s for nothing that is sensitive, nothing that is secret, because those – “official” is a recognised security marking within government.

And because messages are transitory and are therefore not part of the official record, that says to me: therefore anything that’s relevant must be on the record and then you should be deleting that transitory information as soon as it’s no longer required, which is also part of good practice.

Lady Hallett: Sorry, I don’t think you’ve addressed my point, but, Mr Dawson, I’ll leave it to you.

Mr Dawson: Thank you very much.

Ms Fraser, who monitors compliance with these policies?

Ms Lesley Fraser: As I’ve explained, the responsibility sits with directors. We have over 50 directors in the Scottish Government, and they’re responsible for ensuring the compliance of their teams with these policies along with a range of other policies. That is then annually assured through a certificate of assurance process.

In addition to that, I chair an information governance board of the Scottish Government and we look across the piece at the issues that are emerging, at where we need to make improvements and so on, and we target the resources of government and our actions to ensuring that we are making the necessary improvements. So that’s another form of assurance.

We also have the opportunity to bring in our internal audit colleagues as well. So, for example, in relation to material that we’ve provided for this Inquiry, we’ve on two occasions asked our internal audit colleagues to just check that the approach that we’ve been taken looks to them to be sensible and in line with the questions that the Inquiries have been giving to us, and then we’ve been – obviously acted on the recommendations that have come back.

Lead 2A: How do these compliance bodies know if ministers and/or civil servants are corresponding with each other by WhatsApp, which of course happened during the course of the pandemic, about government business, whether the policies are being complied with if you know nothing of the correspondence?

Ms Lesley Fraser: If the civil service knows nothing of the correspondence then action will not be able to be taken within government.

Lead 2A: Does that not create a very significant risk, Ms Fraser, given that you’ve acknowledged that during the course of the pandemic it was known from April 2020 that people were going to be using these various new media of communication, that people could well be corresponding about the business of government and that not being retained on the corporate record?

Ms Lesley Fraser: I think that what I would say here is that the – you know, three things were happening, I think, here. One, we were moving from most people face-to-face in the office to the majority, the vast majority of people working from home. At the same time we had access to new technologies, I particular remember Zoom being fundamental to the way that we were working in government. And there were quite rightly questions about how that would work.

I think the third thing is that the process of producing information for this Inquiry, and indeed for the Scottish Inquiry, has made us reflect on the way in which these new digital records are being created. So I can see from the evidence that I’ve been referred to in preparation for today that there’s a great deal that, you know, is informal, that is preparing for formal meetings, which then I know will have appeared on the record, but nonetheless we’re creating a digital footprint, a digital record where previously none, I think, would have occurred before.

For that –

Lead 2A: Ms Fraser – sorry.

Ms Lesley Fraser: For that reason, we are already looking at our Records Management Policy and the way in which WhatsApp and other social – mobile messaging apps are handled within our records management approach.

Lead 2A: Does this not mean, Ms Fraser – it is encouraging to hear that Scottish Government –

Ms Lesley Fraser: Yes.

Lead 2A: – is taking action as a result of its experience with this Inquiry. However, is it not the position that the Scottish Government had no control over the use of these messaging systems and the retention of any messages that were sent via them involving ministers or civil servants during the course of the pandemic?

Ms Lesley Fraser: I disagree, because it was necessary for government to be able to function that information was being relayed to civil servants and was then being handled through the formal systems of the Scottish Government, our email principally, but records management and so on. No action, no activity of government could happen without that.

And at the same point we were ensuring that those records were being added to the record so that we could understand the steps that we had taken during the pandemic, we could be held to account in particle in live time, and we were also then from very early on aware that there was likely to be public inquiries and that we should be preparing for those.

So that is why we’ve got very significant amounts of information that we have been able to provide to the Inquiry, I think more than 19,000 documents of that sort, and that is the very fundamentals of government, those are the decisions and how they were reached, and you can see all of that set out in those records.

What I’ve seen in the WhatsApps exchanges that I’ve been pointed to is colleagues preparing for those exchanges and then information potentially duplicated on WhatsApp but then clearly going into formal records and on to email, for example.

So I wasn’t at the time conscious that this was a problem, and believe that we have been able to and we do have a comprehensive record.

However, I think that this has shone a spotlight on a really important issue to do with, you know, what these WhatsApp exchanges convey and what that means in terms of the records that government might look to keep in the future, and that’s the area that we want to look at now in our review.

Lead 2A: Ministers and civil servants were permitted by the Scottish Government to use these messaging platforms to speak about government business during the course of the pandemic; is that not correct?

Ms Lesley Fraser: That is correct, up to a certain level of security., yes.

Lead 2A: They were allowed, for example, to use their own mobile phones for that purpose?

Ms Lesley Fraser: Ministers on some occasions chose to use their own mobile phones if they were dealing with –

Lead 2A: I’ve asked whether they were permitted to do so.

Ms Lesley Fraser: They were permitted to, ministers were permitted to.

Lead 2A: Does it not mean, in these circumstances that, as you’ve said, none of these issues have arisen during the course of the pandemic for the various compliance bodies that you’ve mentioned, is it not inevitable that that would be the case when people are using apps, using personal phones over which the government can have no possible control?

Ms Lesley Fraser: For government business which ministers might want to conduct on a personal phone, the only way that could happen is by installing a secure app on their phone. At the time it was a mobile BlackBerry app that they were using and that enabled them to receive emails to their secure government account on a personal phone. So that was available, I think, until March 2023 as one option for ministers: rather than taking a government phone, they could install this secure app on their personal phone and use that mechanism.

Lead 2A: Would an exchange between a senior minister and a political adviser in September 2020 relating to the number of people who should in Scotland be permitted to attend weddings or funerals fall within the definition of government business?

Ms Lesley Fraser: It would.

Lead 2A: Should that have been retained on the corporate record?

Ms Lesley Fraser: Not necessarily that artefact, but a decision like that, that would have been discussed through our formal processes, so you would see email exchanges on that, you would see evidence and advice on that.

The exchange, I think, between Ms Sturgeon and her chief of staff would be – I wasn’t part of that conversation obviously, but it would be for them to explain. But it would be an adjunct to that formal process.

Lead 2A: We received in response to a request made of the Covid Inquiries Response Directorate a very helpful table, if I may say so, on 13 October 2023, which I referred to at the third preliminary hearing.

The table is to be found at INQ000319509.

In that table, your staff, I think, provided us with summaries of the position of a number of senior ministers who were involved in key decision-making during the course of the pandemic, on a number of issues, including their retention of notebooks and things like that, but also in relation to the extent to which they had used or had retained messages relating to the pandemic and how it had been managed.

In the summary table that we see here, we can see that under the box “Nicola Sturgeon” it says that:

“Messages were not retained, they were deleted in routine tidying up of inboxes or [changes] of phones … Unable to retrieve messages.”

So what that tends to suggest is that at a time a request was made, Nicola Sturgeon, the former First Minister of Scotland, had retained no messages whatsoever in connection with her management of the pandemic. Is that correct?

Ms Lesley Fraser: That’s what that indicates to me.

Lead 2A: And when we asked the government whether it had retained any such messages on its corporate record, you provided us with none.

Ms Lesley Fraser: Correct.

Lead 2A: Does that mean that we have no access to the former First Minister of Scotland’s messages in connection with her management of the pandemic?

Ms Lesley Fraser: The way in which, I mean, Ms Sturgeon will be able to explain this much better than me –

Lead 2A: I think that’s just a matter of logic, Ms Fraser, which I’m asking you to help us with.

Ms Lesley Fraser: Yes. Ms Sturgeon would have worked with her private office in order to ensure that her views and instructions were clearly understood, and they may well have been informed by some of the exchanges that she’d had with her chief of staff or with other ministers, but she would have relayed that to her private office and that would be then the instruction that went from private office and that would be retained –

Lead 2A: Do you know that to have happened?

Ms Lesley Fraser: That is how – as I say, that’s how government works. It’s a necessity, for that information to be captured.

Lead 2A: So is the answer to the question do you know that to have happened, no?

Ms Lesley Fraser: It’s hard for me to give absolutes in relation to a general question.

Lead 2A: It’s just about your own knowledge, Ms Fraser, do you know that to have happened or not?

Ms Lesley Fraser: Well, my experience is that we’ve been able to find the relevant information and to demonstrate how those decisions were made and to evidence that through emails and other exchanges on our corporate records system.

Lead 2A: But if you don’t have access to Ms Sturgeon’s messages, and she doesn’t have access to them any more, how can you know whether the relevant information has been transposed on to the corporate record? How can you give the answer you’ve just given?

Ms Lesley Fraser: I can’t, no, not having seen all of the information.

Lead 2A: Could I just refer you very briefly to page 2 in connection with the former Deputy First Minister. His position was that:

“Messages would have been deleted by auto-delete functions or by themselves manually deleting them as they do on a regular basis.”

So the former Deputy First Minister’s position appears to be that he had messages set up on an auto-delete function. Was that something that was permitted?

Ms Lesley Fraser: The use of WhatsApp was permitted on Scottish Government –

Lead 2A: That’s not the question.

Ms Lesley Fraser: – devices. How ministers and private offices chose to manage that on a day-to-day basis would be a matter for them, so it may be that Mr Swinney spoke on a daily basis and explained what he wanted from his private office and then ensured that information was deleted thereafter so that he was able to manage what would quickly, I suppose, become unmanageable amounts of information.

How ministers work with the private office I think is the critical area.

Lead 2A: You mentioned a moment ago, I think on a few occasions, that it was the responsibility of the directors to ensure compliance; is that right?

Ms Lesley Fraser: Yes.

Lead 2A: And what ultimately that meant was compliance by both ministers and civil servants, although they worked directly with the civil servants who were making sure that the ministers did it; is that correct?

Ms Lesley Fraser: Yeah, so minist – yes, directors are responsible for ensuring that their teams are absolutely maintaining our corporate policies and approaches, including on records management. That includes the director for ministerial private offices, who would have been ensuring that this was working well through the pandemic.

Lead 2A: Would it surprise you if it were the case that a director general had encouraged people in a group relating to the management of the pandemic to delete their messages?

Ms Lesley Fraser: I would be surprised if they encouraged them to delete without ensuring that relevant information was retained. I know that some –

Lead 2A: (inaudible)

Ms Lesley Fraser: I know that some WhatsApp exchanges tipped into what I would call banter and, you know, on some instances, I think, personal support for colleagues as well. Now, that I would argue is not relevant for the corporate record of the Scottish Government and, therefore, would not be something that should be retained, and I would expect colleagues to remind people of that as well.

Lead 2A: To follow up on a question that her Ladyship asked earlier, if that material was deemed discoverable by a Freedom of Information request, would it automatically require to be kept on the corporate record?

Ms Lesley Fraser: The matters for the corporate record are the ones that are relevant to government business and the who, what, why, when, how, where. The Freedom of Information requirements do not include what they call ephemeral information, so –

Lead 2A: But on the assumption that it were covered by the FOI requirements, would that mean that it would require to be transposed onto the corporate record and, therefore, not deleted?

Ms Lesley Fraser: We are required to produce anything that we hold, any information that we hold under the Freedom of Information response and therefore were, for example, somebody to ask for all WhatsApps messages pertaining to a decision on X, then were they held, then those would be discoverable under Freedom of Information.

Now, not all of that information – if, for example, it was about the football last night – would be relevant and therefore ought to be recorded on the government records system.

Lead 2A: Does the Scottish Government place any automatic back-up on government-issued phones?

Ms Lesley Fraser: We automatically back up and indeed sync from our government systems. So we have a set of government systems called SCOTS, and whether those are on your mobile or on your laptop, they will automatically be backed up for a certain amount of time.

Lead 2A: Was that the case during the course of the pandemic?

Ms Lesley Fraser: Yes.

Lead 2A: For people who used their personal phones for communications relating to government business, is there any similar system?

Ms Lesley Fraser: Yes, if, for example, ministers were using the secure app in order to be able to receive emails, then that would be covered by the back-up system –

Lead 2A: Would WhatsApp message on a personal phone be automatically backed up to the system?

Ms Lesley Fraser: No, they would not. That would depend on the settings that the individual put in place.

Lead 2A: Would anything other than the emails on the secure system that you’ve just mentioned be backed up to the secure system?

Ms Lesley Fraser: No, we would not back up information on ministers’ private devices other than the information on the secure app.

Lead 2A: I understand that between December 2022 and September 2023 the Scottish Government carried out an upgrade of its corporate mobile phones; is that correct?

Ms Lesley Fraser: It is.

Lead 2A: And you’ve helpfully provided us with a statement in relation to that.

Ms Lesley Fraser: I have, yes.

Lead 2A: Is the result of that that the messages contained on the phones of a number of individuals were wiped, effectively, from their systems?

Ms Lesley Fraser: Yes, I understand that three individuals have said that they lost messages as a result of that upgrade.

Lead 2A: That’s three individuals in a list of people that this Inquiry was interested in contacting for their involvement in decision-making in this pandemic.

Ms Lesley Fraser: Yes.

Lead 2A: There will have been a lot of other individuals but not people that related to our interest.

Ms Lesley Fraser: Yes, the guidance that people had very clearly alerted them to the fact that if they had non-government systems or apps on their phone they would need to back those up separately, that was, I think, number one instruction –

Lead 2A: The instructions came from you in that regard, I think, didn’t they?

Ms Lesley Fraser: The instructions, yes, came from my digital team, so we – yes, we provided training, we provided, again, Saltire articles and advice, and we sent emails to every single person affected to explain to them the process and what they needed to do, step by step.

Lead 2A: Did you ensure that the information that was given was complied with?

Ms Lesley Fraser: As far as we were able to do, yes. Again, working with a large number of officials we rely on directors to ensure that their teams are aware and complying.

Lead 2A: Could I just ask you one final question, Ms Fraser: in all the circumstances that we have discussed, would you accept that the Scottish Government’s document retention policies were simply not fit for purpose during the course of the Covid-19 pandemic?

Ms Lesley Fraser: I wouldn’t accept that they were not fit for purpose during the pandemic, and I think that’s evidenced by the sheer number of documents that we’ve been able to provide and the end-to-end story that that sets out.

I would accept, and I think this is very much learning and understanding, the hurt and frustration that there has been, as well, of not being able to receive all the WhatsApp messages, for example, that we therefore do need to look again at this new, you know, digital trail that is being left by informal messaging and to consider what that means for the good operation of record management within government, and I’d be very happy to keep the Inquiry updated on that work, if that would be helpful.

Lead 2A: Thank you very much.

In the finest tradition, my Lady, having said that’s the last question, there is one matter I’ll return to. It was on the issue of the records that had been provided with the first corporate statement. The first Director General Corporate statement which was provided by Ms Fraser disclosed one version of the Records Management Plan, which was undated, the November 2021 messaging apps usage policy to which we referred. The plan was an operational document and did not set out the policy itself. Further requests were made by a further Rule 9 request, which again resulted in a further Rule 9 response from Ms Fraser. The October 2019 Scottish Government Records Management Policy, which is the main policy that we have been looking at, was only disclosed to the Inquiry on 11 October 2023.

Is that your understanding, Ms Fraser, or are you prepared to take from me that that’s the case?

Ms Lesley Fraser: I’m sure you’ve investigated that, thank you. If we’ve got any other information on that, we’ll of course come back to you –

Lead 2A: I think the key point about that, as her Ladyship said earlier, was that if this was the obvious policy one could quite obviously have reached for it and provided it to us, along with the November 2021 policy, with the first Corporate statement; is that not right?

Ms Lesley Fraser: Yes, I think I would like to consult my team and just check on that point, thank you.

Mr Dawson: My Lady, I understand that there is one core participant question.

Lady Hallett: There is.

Mr Dawson: Ms Mitchell.

Lady Hallett: Ms Mitchell.

Questions From Ms Mitchell KC

Ms Mitchell: I’m obliged, my Lady. There is also a Rule 10 application which was made which has been sent to the Inquiry, so perhaps if I’m asking my first question they might have a look at that. It was simply arising from something that was said, my Lady.

Lady Hallett: Okay, if somebody could send that to me, thank you.

Ms Mitchell: I understand from my junior it’s been sent off.

Lady Hallett: I’ve got shaking heads, but anyway.

Ms Mitchell: A little. Well, my Lady …

I’m obliged to my learned friend Counsel to the Inquiry for asking many of the questions which the Scottish Covid Bereaved were interested in asking.

I want to move to a slightly separate issue just now, and that is the response in relation to public messaging.

You’ve given us a full statement in relation to public messaging, but I only have a very narrow issue to ask you about, and it’s this: the UK Government in an earlier part of the module, Module 2, it was shown that there were a number of messages which were wrong that were given publicly, and by that I mean that either identified the wrong place to which they applied because ministers referred publicly to “the UK” or “this country” or “Britain” when they were actually meaning England, “England as the UK”, I believe, was a phrase which was used.

What I would like to know from you, Ms Fraser, was: was there any need for a correction of the UK Government’s public health messaging that you were aware of, and was there any discussion within that, and any action taken?

Ms Lesley Fraser: I don’t have here information about whether there was a particular instance, but I know that there were regular weekly meetings between my own communication and marketing colleagues and their counterparts in the UK, and a great deal of time and effort was spent on trying to ensure that there were not contradictory or misleading messages applied through those – through communications and marketing activity.

I think, for example, we had in place the FACTS messaging from – I think with stakeholders from late May 2020 and then in use generally in June 2020, and “Hands, Face, Space” from the UK Government was then something that they launched later that summer, is my understanding.

Now, clearly we had traction and awareness and understanding, and employers and other institutions were bought into and using the FACTS messaging, so there we worked with the UK Government to try to ensure that there wasn’t confusion by overlaying a separate set of messages to a population who were already, we were observing, working very hard in order to comply with these protective behaviours.

Ms Mitchell KC: So I see you understand that detail, but my specific question related to the difficulty of the problems that was being evidenced by the UK Government being unable to distinguish between these on occasions. Do you personally have any understanding of whether or not that was addressed by your team?

Ms Lesley Fraser: My team did have regular discussions, for example, about communities living in the borders, you know, who were, for example, receiving perhaps, you know, contradictory information or difficult to understand information about, for example, train journeys that might cross the border. So there the teams were working together to try to ensure that as far as possible we were giving clear, consistent, actionable advice to people who were keen to respond properly.

Ms Mitchell KC: But I might just press you –

Ms Lesley Fraser: Yes.

Ms Mitchell KC: – focus, in relation to the problem that was identified of the UK Government getting that message wrong, are you aware specifically of anything of that nature?

Ms Lesley Fraser: I would need to check with my teams whether there were specific examples. I know that generally the position improved over the course of the pandemic, so it was more problematic at the outset. I think, for example, the change from “Stay at Home” message was something that we were unaware was going to change to “Stay Alert”, and that caused a problem at the outset.

Ms Mitchell KC: Yes, I think the Inquiry is aware of that.

Ms Lesley Fraser: Okay.

Ms Mitchell KC: So I don’t need any further information in that regard.

My Lady, I don’t know whether or not –

Lady Hallett: I think the question has landed.

Mr Dawson, you’re going to tell me …

Mr Dawson: The position is, I think, although we’re very grateful to Ms Mitchell, the subject has been covered in the questions we’ve already put to Ms Fraser and her extensive statements on the matter.

Lady Hallett: What is the question?

Mr Dawson: The question pertains to the deletion policy and whether it’s – the question is:

“I would like to ask what the rationale was for deletion given the FOI obligation.”

Which I think is –

Lady Hallett: The matter I was pursuing?

Mr Dawson: Indeed. Which I think has been covered as far as I’m concerned.

Lady Hallett: You’ve got a minute, Ms Mitchell.

Ms Mitchell: Okay.

The question is this: what’s the rationale for the deletion of records when it would seem eminently sensible simply to hold on to those records in case someone FOIs you?

Ms Lesley Fraser: Indeed. We can’t physically retain everything –

Ms Mitchell KC: No, I’m talking about individuals on their WhatsApps or other text messages.

Ms Lesley Fraser: Yeah. So we’re concerned about security. So different messaging systems can have different vulnerabilities, and obviously government ministers or civil servants need to reduce the vulnerabilities if on phones that are being used for government business.

Ms Mitchell KC: And –

Ms Lesley Fraser: We’re also concerned that if, for example, there are long WhatsApp exchanges that might contain personal information, sensitive information about individuals that would be covered, for example, by the GDPR data privacy, that those should not be retained. We shouldn’t – government shouldn’t be holding information that is not relevant to government business and therefore that should be reviewed, got on to the record and then deleted at the earliest opportunity.

Ms Mitchell KC: And we touched briefly on the issue of FOIs. If, when someone asks you to show them the retained information you have –

Ms Lesley Fraser: Yes.

Ms Mitchell KC: – it’s only relevant at that particular time, so if it’s deleted you don’t have that obligation, but you do have an obligation to do something, to tell them either when it was deleted or to explain your policy; is that correct?

Ms Lesley Fraser: We have a – yes, we have a general responsibility actually under the Public Records Act to explain what our retention and deletion policies are.

Ms Mitchell KC: So prior to 2021, before the addendum came up, how were people able to know what that policy was?

Ms Lesley Fraser: So under the Records Management Act, it’s clear what the document retention policies are that we agree with the Keeper of the Records of Scotland. In relation to WhatsApp messaging, we would be first of all saying to people “If it’s relevant to government business, get it on to the government record”, that’s the number one thing, because we can’t search easily –

Ms Mitchell KC: I understand the issue, what I’m saying is –

Ms Lesley Fraser: “Once it’s on the record, then for security, data privacy and a whole set of other reasons, please don’t retain information for longer than it’s required.”

Ms Mitchell KC: But if you have to give an explanation for why such a policy is in place, for deletion or the fact that it’s been deleted, we don’t actually have one directly in relation to ministers?

Ms Lesley Fraser: Ministers don’t have the responsibility directly to write information onto the corporate record. That is the responsibility of civil servants.

Ms Mitchell: I think I’ve taken enough of my Lady’s minute.

Lady Hallett: Thank you, Ms Mitchell. In fact the email was sent to the M2 inbox, not the M2A, that’s why it took a while to track it down.

Ms Mitchell: I apologise.

Lady Hallett: Not your fault. I mention it so it doesn’t happen again.

Ms Mitchell: Thank you.

Lady Hallett: 11.30.

Mr Dawson: Thank you very much.

Lady Hallett: Thank you very much indeed, Ms Fraser.

The Witness: Thank you.

(The witness withdrew)

(11.16 am)

(A short break)

(11.30 am)

Lady Hallett: Mr Dawson.

Mr Dawson: The next witness, my Lady, is Mr Kenneth Thomson

CB.