Background information on S6W-11314: FOI release

Information request and response under the Freedom of Information (Scotland) Act 2002.

Information requested

Please provide all internal memos, advice, procedural notes and other communications prepared in response to question S6W-11314, asked by Gordon MacDonald on 30 September and answered by George Adam on 3 October.


I enclose (in Annex A) a copy of most of the information you requested, although you should be aware that the information provided was prepared in anticipation of question S6W-11314 being asked by Gordon MacDonald MSP on 30 September 2022 rather than it being prepared in response to it. This is because question S6W-11314 was initiated by the Scottish Government in order to make the Scottish Parliament aware of its plans to set out in a Bill's accompanying documents how provisions in that Bill apply to the Crown and why Crown consent is required (if it is).

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 36(1) (confidentiality of correspondence) and 38(1)(b) (personal information) of FOISA apply to that information.

An exemption under section 36(1) of FOISA applies to some of the information you have requested because the information found is in relation to communications where legal advice was sought and given. This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government because it relates to a specific constitutional requirement set out in the Scotland Act 1998. However, this is outweighed by the public interest in maintaining the right to confidentiality of communications between a legal adviser and their client because disclosure of this information would harm the confidentiality of the proceedings of a public authority where such confidentiality is provided for by law.

An exemption under section 38(1)(b) of FOISA applies to some of the information you have requested because it is personal data of a third party, i.e. names and contact details of civil servants, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protections Act 2018. The relevant information has therefore been redacted in documents 1, 2, 4, 5, 6, 8, 8b, 9, 10 and 11 contained in Annex A. This exemption is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

The rest of the information requested by you has been included in its entirety.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at

FOI - 202200323491 Annex A


Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road

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