Documents provided to ministers on topic of second independence referendum: FOI release

I enclose a copy of some of the information you requested.

Some of the information you have requested is available from the Scottish Government webpage, at the following links: https://www.gov.scot/Publications/2017/06/5860; https://www.gov.scot/Publications/2017/06/5373/1. 

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.  If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.

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 30(b)(i) (free and frank exchange of views for the purposes of deliberation) and 36(1) (legal advice) of FOISA apply to that information.  The reasons why the exemptions apply are explained below.

Reasons for not providing information

An exemption under section 30(b)(i) of FOISA (free and frank advice and exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on another independence referendum will substantially inhibit such briefing in the future.

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 allowing Ministers and officials a private space within which to explore and refine the Government’s position on another independence referendum, until the Government as a whole can adopt a decision that is sound and likely to be effective.  This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken.  Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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.