Correspondence between Teneo Restructuring Limited in 2021: FOI release

Information requested

“Any correspondence between Teneo Restructuring Limited and its employees including emails, letters, memos, meetings, handouts, and attachments to emails, with civil servants in the legal directorate or justice directorate, special advisers, the Lord Advocate’s office, The First Minister, Deputy First Minister, and Justice Secretary’s Office including the minister’s themselves, in the 2021 calendar year.”

Response

I include a copy of some of the information you requested within the attached document accompanying this letter. Redactions have been made to the information because of exemptions under sections 30(c) (prejudice to the effective conduct of public affairs) and 38(1)(b) (personal information) of FOISA.

While our aim is to provide information whenever possible, in this instance we are unable to provide the majority of the information you have requested because an exemption under 36(1) (confidentiality) of FOISA applies to that information.

The reasons for the exemptions we have applied are set out below.

Exemption applied under Section 30(c) - Prejudice to the effective conduct of public affairs

Redactions have been made to the attached document accompanying this letter under section 30(c) of FOISA (prejudice to effective conduct of public affairs). The Section 30(c) 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. 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.

Exemption applied under Section 36(1) - Litigation Privilege

The majority of the correspondence you have requested relates to live litigation proceedings in the Court of Session. An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to all 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.

Exemption applied under Section 38(1) - Personal Details

Redactions have been made to the attached document accompanying this letter under Section 38(1)(b) of FOISA. This exception applies because the information is personal data of a third person (i.e. staff names, email addresses, phone numbers, etc.) 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 - 202100256538 - Information Released - Annex

File type

33 page PDF

File size

1.4 MB