Discussions regarding the judicial review: FOI release

Information requested

All notes, correspondence, actions to be taken from the meetings on November 2 and 13 between the First Minister, the permanent secretary and external legal advisers to discuss the judicial review.

Response

We have interpreted your request as pertaining to the meetings held on 2 November and 13 November 2018 which were referred to during the evidence given to the Scottish Parliament Committee on the Scottish Government Handling of Harassment Complaints, and at which either the First Minister or the Permanent Secretary were present.

You will be aware that the release of communications with legal advisers is an exceptional occurrence, and in the case of the release of documents to the Parliamentary Committee, this was considered to be warranted, given the requirements of the Committee to understand the Scottish Government's handling of the judicial review.

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

Some of the information you have requested is available from:

• OCT+-+LA28+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot),
• OCT-+LA20+-+LPP+-+5+-+FINAL+-+Committee+copy.pdf (www.gov.scot) and
• https://www.parliament.scot/HarassmentComplaintsCommittee/General%20documents/JR_-_Open_Record_-_as_redacted_23rd_October_2020.pdf.

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(s) 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 26(c) (Contempt of Court), 30(b)(i) (the free and frank provision of advice), 30(c) (the effective conduct of public affairs), (38(1)(b) (third party data) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

An exemption under section 26(c) of FOISA (prohibitions on disclosure: contempt of court) applies to the information because disclosure might identify complainers who are subject to an order under the Contempt of Court Act 1981. The order was made by the court in the context of the Judicial Review proceedings. 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(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This is because it is likely that disclosure would likely inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to other officials before the Scottish Government reaches a settled view. Disclosing the content of free and frank advice on personnel and legal aspects will substantially inhibit the provision of such advice in the future, particularly because these discussions relate to a sensitive and controversial issue.

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 a private space within which officials can provide free and frank advice to other officials, as part of the process of exploring and refining the Government’s position. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

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 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 matters concerning complaints against ministers. 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 38(1)(b) of FOISA (personal information), applies to some of the information requested because it is personal data of a third party, for example names and personal information of staff in grades below the Senior Civil Service 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.

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.

FOI 202100173910 - Information released

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