Scottish Information Commissioner (SIC) ruling 004/2023: FOI release

Information requested

1. The cost of any legal advice - either from the Scottish Government's legal directorate or from external advisers/counsel - in regards to the decision to challenge the SIC ruling 004/2023.
2. Any internal correspondence among senior civil servants, special advisers, and ministers (including any attachments or referenced briefings) on the topic of the decision to challenge the SIC ruling 004/2023.

Response

In relation to the first part of your request it may be helpful if I explain that the only relevant recorded information held by the Scottish Government relates to the cost of fees for counsel advice regarding the decision. The cost of this was £3,960.

In relation to the second part of your request, while our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section 36(1) (confidentiality) applies to all of the information. This is because this information is subject to legal professional privilege- specifically litigation privilege (“communications post litem motam”) and legal advice privilege. Litigation privilege applies to information created in contemplation of litigation and to communications when litigation is either pending or being considered. The litigation in question is the appeal by the Scottish Ministers against the decision of the Office of the Scottish Information Commissioner dated 31 January 2023, which is now subject to live proceedings in the Court of Session, lodged on 14 March 2023. Therefore, disclosure of the information 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 when litigation is being contemplated or when it is taking place, and allowing the matter to proceed through the court without prejudice.

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