Scottish COVID-19 Inquiry: "Do not destroy" letters issued

On Friday 5 August 2022 the Scottish COVID-19 Inquiry confirmed that it had issued a number of letters to a range of organisations and individuals asking them not to destroy information that is relevant to the Inquiry's investigation.

The Inquiry is seeking to ensure that relevant documentation is preserved so that it is available when requests for evidence are subsequently made by the Inquiry.

The Inquiry has reminded recipients that it is an offence under section 35 of the Inquiries Act 2005 to alter or destroy relevant documents or to otherwise prevent them from being provided to the Inquiry.

Those who have received a "do not destroy" letter should expect to receive a request to produce evidence to the Inquiry in due course.

The Inquiry previously published a statement on its website asking organisations which were involved in the strategic response to the COVID-19 pandemic in Scotland to retain relevant documents. Therefore, organisations which have yet to receive a direct letter should continue to retain material relating to the Inquiry's investigation.

What to do if you receive a "do not destroy letter"

Organisations that receive a letter, or otherwise believe that they hold relevant information, should issue a notice to all staff members asking them not to delete or destroy relevant information. Staff should be reminded that such information may include emails, text or WhatsApp messages and other communications.

Organisations should also start collating relevant information so that they are prepared for when document requests are made by the Inquiry.

Those responsible for gathering this information should familiarise themselves with the most recent version of Inquiry's terms of reference to ensure that all relevant documents are identified and kept.

In June 2022, some additions were made to the Inquiry's terms of reference. The most significant addition was that in interpreting the terms of reference, the Inquiry will "as the chair deems appropriate and necessary, consider any disparities in the strategic elements of handling of the pandemic, including unequal impacts on people". This is likely to involve consideration of any disproportionate impacts that the pandemic had on ethnic minorities and those with disabilities and may also include the investigation of such impacts on individuals and families with low-incomes and on those going through pregnancy and childbirth during the pandemic.

The Inquiry has also been tasked with investigating the provision of social care support, including the management and support of staff and the recognition, involvement and support of unpaid carers.

Finally, a minor amendment was also made to ensure that the impact of the decisions to lockdown and apply other restrictions will be investigated, as opposed to only the decisions themselves as was previously stated.

Document requests

The Inquiry has also published a Protocol on the receipt and handling of information which indicates that where possible the Inquiry will seek to rely on organisations producing documents on a voluntary basis following a written request being made by the Inquiry.

The Inquiry expects parties to "give a broad interpretation to any request, and provide all information requested, together with any other information relevant to that request".

If a party fails to comply with a voluntary request (or cannot comply with such a request as it needs a formal order to disclose the information), the Chair can rely on the powers provided in the Inquiry Act 2005 to require a party to hand over the information requested.

If you have received a "do not destroy letter" or otherwise think that you may have material that may be of relevance to the Inquiry and would like to discuss how such information should be preserved, please contact Christine O'Neill KC, Kirstyn Burke or your usual Brodies contact.