Legal advice in response to Scottish Information Commissioner’s decision 193/2024: FOI release

Information requested

In regards to FOI 202400445520, the following passage exists within the information released:

"For information at this stage, I am attaching a copy of all the legal advice that we will release in response to the Scottish Information Commissioner’s recent decision 193/2024. There are 25 separate documents (named A-Y), combined into one pdf, which is embedded in the attached summary. This names each document and includes some rough summary lines from each. In the main pdf you can use the contents button (top left) to navigate to the different documents."

1) I request the the combined pdf described above, as well as any other documents/summaries described above.

2) I request all information that was redacted within the information under the "redacted - out of scope" reason.

Response

I have answered each of your questions in turn for ease.

Question 1 - The ‘combined’ pdf is available on the Scottish Government website FOI 202400394394 - Information Released - Annex.pdf as the information was released, subject to relevant exemptions, in response to the Scottish Information Commissioner's decision 193/2024. Under section 25(1) of FoI(S)A, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

I can confirm that the “combined” pdf embedded in the document referenced in response 202400445520 is exactly the same as the version published, with exemptions applied as per the published version, at FOI 202400394394 - Information Released - Annex.pdf as outlined above.

The summary referred to in your request is disclosed in full here and a copy is attached as 'Document 2(a)'. There are no other documents that fall with the scope of part 1) of your request, only the “combined pdf” and the summary.

Question 2 - the information that was considered 'out of scope' for case 202400445520 has been reconsidered for release for this case and I am disclosing some of that information to you now.

However, while we endeavour to provide information wherever possible, exemptions at sections 25(1) (otherwise accessible), 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), 30(c) (substantial prejudice to the effective conduct of public affairs), 36(1) (legal advice) and 38(1)(b) (personal data) of FoI(S)A apply to some of that information. Each exemption has been outlined below and reasons provided as to why the information has been withheld.

Exemptions:

Section 25(1) – Otherwise accessible

An exemption under section 25(1) – information otherwise accessible applies to some of the information as it is a copy of the statement released by the Scottish Government on 26th October 2024 and published here: Legal advice relating to Scottish Information Commissioner decision: statement - gov.scot. Under section 25(1) of FoI(S)A, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

Section 30(b)(ii) – Free and frank exchange of views for the purposes of deliberation

An exemption under section 30(b)(ii) of FoI(S)A applies to some of the information requested because disclosure would, or would be likely to inhibit substantially the free and frank exchange of views. This exemption recognises the need for officials to have a private space within which to exchange free and frank views with other officials and stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of free and frank exchanges during drafting of the statement referenced above will substantially inhibit the provision of such exchanges in the future.

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 because of the level of interest the topic has generated and that the public expect openness and transparency from Government, However, this is outweighed by the public interest in ensuring that officials have a private space in which matters of government can be discussed freely. In this case, there is a greater public interest in protecting the exchanges that allow the proper and robust explanation of the Government’s decision making made public in the final statement.

Section 30(c) - Substantial prejudice to the effective conduct of public affairs

An exemption under section 30(c) of FoI(S)A applies to some of the information requested because revealing the source of 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 likely 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 some public interest in release because of the level of interest the topic has generated and that the public expect openness and transparency from Government, However, this is outweighed by the public interest in ensuring that officials, Ministers and relevant stakeholders have a safe environment in which matters of government can be discussed freely and without concern. If no safe environment were provided there would be reluctance for officials, Ministers and stakeholders, such as law officers, to be able to engage freely with confidence.

Section 36(1) – confidentiality in proceedings

An exemption under section 36(1) of FoI(S)A (confidentiality in legal proceedings) applies to a small amount 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.

Section 38(1)(b) – personal data of a third party.

An exemption under section 38(1)(b) of FoI(S)A (personal information) applies to some of the information requested because it is personal data of a third party, i.e. the names and contact details of individuals, 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.

Please note that any information that has been considered as ‘out of scope’ for this request, & withheld on this basis, was previously considered and released subject to the appropriate exemptions, when responding to your FoI request 202400445520 and as such we were not required to consider it for the scope of this request.

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 202500448605 - Information released - Annex

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PDF

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615.4 kB