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

Information requested

Original request - 202300390057

All legal advice given to the Scottish Government/ministers in reference to the court case known as The Scottish Ministers v The Scottish Information Commissioner (case reference number XA10/23). This includes legal advice given in relation to the decision to appeal, as well as advice in preparation for the court hearing, as well as all other such advice in relation to the case.

Response

Further to my letter of 18 December 2024, I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for:

1) Who made the decision to release and not appeal FOI case 202400394394 to the court of session?

2) All communications regarding FOI case 202400394394, from the moment the initial FOI was submitted to the eventual release of the information

3) All legal advice regarding FOI case 202400394394

In accordance with section 21(4) of FOISA, I have also reached a decision on your request. Unfortunately, as noted in my letter of 18 December, due to an administrative error your request for information was overlooked. I apologise for this oversight and for the delay in responding to your request.

I can now provide our response to your original request.

Part 1
The decision to comply with the Scottish Information Commissioner's decision reference 193/2024 and therefore not to appeal this decision to the Court of Session was taken by the First Minister.

Part 2 and Part 3
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. In this case, a significant amount of information has been identified as potentially being within scope of part 2 and part 3 of your request. This information requires further careful consideration to identify the specific information relevant to your request. Having identified the specific information relevant to your requesta nd after establishing if any exceptions would apply under FOISA we would then need to and prepare this information for disclosure by redacting any exempt information. In line with para 9.4.2 of the Code of Practice under section 60 of FOISA I have created an estimate of how the cost of complying with your request would exceed the cost limit. I have provided details of this estimate in the Annex to this letter. 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. We are currently working to respond to requests you have made for informationfoc used on the timing of the release of legal advice and the statement the Scottish Ministers made to Parliament on 29 October 2024. You may wish to narrow the scope of this request by identifying further specific aspects of the handling of 202400394394 in which you are most interested. 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. 

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.