Information held that relates to extraditions from Pakistan: FOI release

All information and any correspondence held by the Scottish Government that relates to the extradition of lmran Shahid, Zeeshan Shahid and Mohammed Faisal Mushtaq from Pakistan.

An exemption under section 38(1)(b) (personal information) of FOISA applies to some of the information requested because it is personal data of a third party, ie names and personal contact information 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.

Exemptions  apply, subject  to the public  interest test

An exemption under section 30(c) of FOISA applies to the information you have requested. This exemption applies where substantial prejudice to the effective conduct of public affairs may occur. In the case of the material you are seeking, the substantial prejudice would  relate to  communications  with  external stakeholders.

It is essential for officials to be able to communicate, often in confidence, with external stakeholders on a range of issues, including extradition and related issues. Disclosing the content of these communications, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to provide their views fully and frankly if they believe that their views are likely to be made public, particularly while these discussions relate to matters which are still under consideration, such as the mechanics of extradition between the UK and  Pakistan.  This would significantly  harm the Government's ability to carry out many aspects of its work, and could adversely affect its ability to gather  all of the evidence  it needs to  make fully  informed decisions.

This exemption also applies because revealing the source of the Scottish Government's legal advice on its approach to extradition 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 extradition. 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, this is outweighed by the public interest in allowing Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government's position on extradition requests and related issues, until the Government as a whole can adopt decisions that are sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed  advice  and evidence,  such  as that  provided  by various  departments of the UK Government. Premature disclosure is likely to  undermine the full and frank  discussion  of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Moreover, 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.

An exemption under section 32(1)(a)(i) of FOISA applies to the information you have requested. This exemption applies to circumstances in which disclosure would, or would be likely to, prejudice substantially relations between the United Kingdom and Pakistan. The effective conduct of international relations depends upon maintaining trust and confidence between the UK Government and other States. In this case, the information about discussions on extradition was given to the Scottish Government on the understanding that it would be treated as being in confidence. If the Scottish Government does not respect this confidence, the UK Government's relations with other States and its ability to protect and promote UK interests will be substantially prejudiced. States such as Pakistan, are likely to be more reluctant to share sensitive information, such as the procedure in relation of particular extraditions, or extraditions in general, with Scotland or other parts of the United Kingdom in future, which would reduce both the frequency and openness of communications with the UK.

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 ensuring that the UK Government is able to maintain good relations with other States, in order to protect and promote UK interests abroad. There can be no public interest in jeopardising those relations by the Scottish Government disclosing confidential information or information which another State has provided in circumstances in which it is reasonable for that State to expect that it will be so held.

An exemption under section 35(1)(b) of FOISA applies to the information you have requested. This exemption applies where disclosure of information under the Act would, or would be likely to, prejudice substantially the apprehension or prosecution of offenders . It is essential that organisations involved in the apprehension or prosecution of offenders should be able to communicate, often in confidence, with each other on a range of issues, including extradition and related issues. Disclosing the content of these communications, is likely to undermine trust in the Scottish Government as a partner in the prevention and detection of crime and will substantially inhibit communications on this type of issue in the future. This would significantly harm the Government's ability to carry out many aspects of its work.

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 because of the time which has elapsed since the events to which your request relates, and the public nature of the outcome.  However, this is outweighed by the public interest in allowing Ministers and officials a private space within which to communicate with organisations engaged in the apprehension and prosecution  of offenders. This private space is essential to enable work of this nature to be undertaken without, for example, alerting suspects. Premature disclosure is likely to undermine the fight against crime, which would not be in the public interest. In this connexion it should be noted that there is no limit  of time beyond which crimes cannot be pursued in Scotland.

An exemption under section 36(1) of FOISA applies to the information some of the information you have 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.