A review of undercover policing in Scotland: FOI appeal

Information regarding a potential inquiry into undercover policing in Scotland and the Scottish Government's decision not to order an independent Scottish inquiry for the period from 17/01/17 to the present day.

Further to your correspondence with the Scottish Information Commissioner in relation to your appeal concerning FOI/18/00319, we have reconsidered the information previously withheld under section 29(1)(a) of FOI(S)A and are able to release the additional attached information in the first PDF. 

I am now providing you with a further two pieces of information which should have been included in the first PDF.  These are provided on the second pdf.

The first of the two items included a copy of Q+A briefing – that information was included in the first PDF.

The second of the two items included four attachments:

• A copy of the Ministerial statement – this is publicly available and can be found at http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11355&i=103263
• A copy of the Q+A briefing (as mentioned above),
• A copy of the HMICS report – that is publicly available and can be found at https://www.hmics.scot/publications/strategic-review-undercover-policing-scotland
• A factual briefing note on investigatory powers (included on the second pdf.)

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

Reasons for not providing information

Please note that an exemption under section 38(1)(b) of FOISA (personal information) applies some of the information requested because it is personal data of a third party, eg names/contact details of individuals, 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 Protection Act 2018. 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.

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on the issue of whether or not to hold a public inquiry, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on whether or not to hold a public inquiry. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter.  There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.