Lord Advocate correspondence relating to publication of Alex Salmond’s submission: FOI release

Information requested

Any correspondence (including emails, attachments, typed or handwritten notes, letters, notes/records of phone calls, minutes of meetings, briefings or otherwise) received or sent by the Lord Advocate (or his office) on 19, 20, 21, 22 or 23 February 2021 regarding the publication of Alex Salmond’s Ministerial Code submission.

Response

Some of the information requested has been attached.

While our aim is to provide information whenever possible, in this instance we are unable to provide the remainder of the information which falls within the scope of your request, because exemptions under sections 26(c) (contempt of court), 29(1)(b) (Ministerial communications), 30(b)(i) and (ii) (free and frank exchange of advice and views), 30(c) (substantial prejudice to effective conduct of public affairs), 36(1)( (legal privilege) and 38(1)(b) (personal information), of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Reasons for not providing information
Under section 26(c) of FOISA, information is exempt information if its disclosure by a Scottish public authority (otherwise than under this Act) would constitute, or be punishable as, a contempt of court. The disclosure of further information in this record would breach an order made on 10 March 2020, by the Lord Justice Clerk at the High Court of Justiciary in terms of Section 11 of the Contempt of Court Act 1981, preventing the publication of the names and identity and any information likely to disclose the identity of the complainers in the case of HMA v Alexander Elliot Anderson Salmond. The order was made by the court during the criminal proceedings to which the Scottish Government was not a party. 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 29(1)(b) (Ministerial communications) applies to some of the information as the information relates to communications between Scottish Ministers. 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 this 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 a private space within which issues can be explored and refined, until the Government as a whole can reach decisions that are sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process.

An exemption under section 30(b)(i) and (ii) (free and frank exchange of advice and views) of FOISA applies to some of the information you have requested. This is because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views and provision of advice. 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 officials a private space in which to provide free and frank advice to other officials. Disclosing the content of such exchanges would substantially inhibit the provision of such advice, or the exchange of such views, in the future.

An exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to all of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on the judicial review, 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 this and other legal issues. 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.

An exemption under section 36(1) of FOISA applies to some of the information you have requested because some of the documents and correspondence are covered by 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 private or public organisation.

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, for example names of individuals or other personal data 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.

Outwith FOISA you may also wish to be aware that a final version of the draft letter, which is included as an appendix to document 3 (attached), was subsequently published by the Committee on the Scottish Government Handling of Harassment Complaints, the document can be viewed here: 20210225Lord_Advocate.pdf (parliament.scot)

About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI202100166329 - Information released

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