Legal advice sought by Education Scotland: FOI review

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

FOI reference: FOI/17/02778
Date received: 6 December 2017
Date responded: 20 December 2017

Information requested

Further to our email of 6 December 2017, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).

Your request relates to the response for FOI/17/02778 where you have asked us to review the responses to the points three and four.

Previous Freedom of Information request, points 3 and 4:

3. A listing of the documentation sent to the solicitors to inform their deliberations.

4. The request itself detailing the questions or issues for which Education Scotland sought legal advice.

Previous response to points 3 and 4:

3. While our aim is to provide information whenever possible, in this instance we are unable to provide the information requested because an exemption under section 36(1), legal advice of FOISA applies to that information. The reason why that exemption applies is explained below.

4. See answer to question three.


I have reviewed your original request and the response provided and have determined that the legal professional privilege does apply. Therefore, I have concluded that the original decision should be confirmed without modifications.

If you are unhappy with the outcome of this review you have the right to appeal to the Scottish Information Commissioner about our decision within 6 months of receiving this letter.

Reasons for not providing information

Section 36(1) - legal advice.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

About FOI

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


Please quote the FOI reference

Central Enquiry Unit
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road

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