Lord Advocate meeting with Deputy First Minister: FOI release

Information requested

1) Minutes of any meeting between the Deputy First Minister John Swinney and the Lord Advocate on February 23, 2021;
2) Emails, texts and records of phone calls between the Deputy First Minister and the Lord Advocate, with necessary redactions of personal information, on 23 February 2021; and
3) Any follow-up contacts - texts, WhatsApp messages, emails and phone calls, between the Deputy First Minister and Lord advocate between February 23 and February 28 2021.

Response

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

Some of the information you have requested is available from:
https://archive2021.parliament.scot/HarassmentComplaintsCommittee/General%20documents/20210225Lord_Advocate.pdf

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

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 section 29(1)(b) (Ministerial communications), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), 30(c) (the effective conduct of public affairs), 36(1) (claim to confidentiality of communications - legal professional privilege) and 38(1)(b) (third party data) of FOISA apply to that information. The reasons why those exemptions apply are explained below.

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it 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 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 a private space within which issues can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for 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, which in turn will undermine the quality of the decision making process.

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 matters relating to the requests by the Scottish Parliament Committee on the Scottish Government's Handling of Harassment Complaints 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 such issues in future. 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 (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.

These exemptions are 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 there is interest in how the Scottish Government handled the consideration of requests for documents by the Scottish Parliament's Committee on the Scottish Government's Handling of Harassment Complaints. However, this is outweighed by the public interest in maintaining the ability of the Scottish Government to seek, or not seek, as appropriate, the advice of Law Officers, and on whether the Law Officers had been consulted on particular matters.

An exemption under section 38(1)(b) of FOISA applies to some of the information that you have requested. Section 38(1)(b) applies 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.

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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 202100210688 - Information released

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