Legal advice given to the Scottish Government/ministers in reference to The Scottish Ministers v The Scottish Information Commissioner: FOI release

Information requested

Within the legal advice published by the Scottish Government on the 26th of October 2024, in response to FOI 202400394394, on page 69 the following passage exists:

"Thus REDACTED, request that Mr Hamilton be permitted to engage independent legal advice and charge the costs to the Scottish Government was set out in an official minute to the DFM and Lord Advocate dated October 2020, and not in confidential correspondence addressed from and on behalf of the independent adviser. The content of that minute provides a civil servant’s summary of the issues, rather than a request argued from the point of view of the independent adviser. At §15, in relation to the waiving of legal privilege, the minute appears to give ministers the writer’s personal insights into Mr Hamilton’s likely response to possible positions that Ministers might adopt. This again suggests a less than arm’s length and independent position. I can see that from one point of view REDACTED might appear to be the ideal person to brief Ministers on such matters. However, I do not know to what extent Mr Hamilton was aware of this briefing role that REDACTED was performing."

1) I request the official minute to the then DFM and then Lord Advocate described within the above passage

Thereafter on page 70 the following is stated: 

"I fully accept that it is not unusual for civil servants to perform a variety of functions which do not necessarily come into conflict. However, I sense that SGLD has some concerns that the documents show a lack of proper separation between the ongoing work of Ministers and civil servants, and the need for a scrupulously independent Secretariat." 

2) I request the "documents" that are referred to in this passage that the SGLD has some concerns about.

3) Any and all other briefings or communications (minutes, emails, whatsapps, anything) between the secretariat of James Hamilton's investigation into the former FM Nicola Sturgeon, 2020-21 and Scottish Ministers, civil servants, SPADs and all other members of the Scottish Government and/or third parties, in her capacity as the secretariat regarding James Hamilton's investigation.

4) Any and all other briefings or communications (minutes, emails, whatsapps, anything) between the secretariat of James Hamilton's investigation into the former FM Nicola Sturgeon, 2020-21 and Scottish Ministers, civil servants, SPADs and all other members of the Scottish Government and/or third parties, in her other role within the civil service which was not the secretariat of Mr Hamilton's investigation regarding James Hamilton's investigation. 

5) Was Mr Hamilton aware that his secretariat was briefing Ministers in the way described in the two passages quoted from the legal advice above?

Response

In response to your first question, I enclose a copy of some of the information you requested. Exemptions under sections 30(c) (substantial prejudice to effective conduct of public affairs), 36(1) (confidentiality) and s.38(1)(b) (third party personal data) of FOISA apply to some of the information you have requested. The reasons why these exemptions apply are set out in the Annex to this letter.

In response to your second question, I enclose a copy of some of the information you requested. An exemption under section s.38(1)(b) (third party personal data) of FOISA applies to some of the information you have requested. The reasons why this exemption applies are set out in the Annex to this letter.

In response to your third and fourth questions, while our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600. Searches of the corporate records management system (eRDM) conducted to answer these questions returned a large volume of results for both of these questions, and the cost of assessing whether the documents fell within scope of your request, and then making any redactions necessary to them exceeded the upper cost limit. Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. You might wish to request documents within a particular timeframe or on a particular issue in order to reduce the scope of your request. You may also find it helpful to look at the Scottish Information Commissioner's 'Tips for requesting information under FOI and the EIRs' on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx. 

In response to your fifth question, this is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

About FOI

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

FOI 202400438168 - Information released - Annex A

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PDF

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87.4 kB

FOI 202400438168 - Information released - Annex B

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1.4 MB