Information regarding the decision not to give the Scottish Information Commissioner legal advice: FOI release

Information requested

1) Any and all communications, meetings, minutes, records discussing/referencing the decision not to give the Scottish Information Commissioner the legal advice requested from FOI 202300390057 during his investigation that resulted in decision notice 193/2024.

2) Who within the Scottish Government made the decision not to give the legal advice requested to the Scottish Information Commissioner for his investigation?

Response

Question 1

I enclose a copy of some of the information you requested.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 30(c) (substantial prejudice to the effective conduct of public affairs), 36(1) (confidentiality of proceedings), 38(1)(a) and 38(1)(b) (personal data) of FOISA applies to that information. The reasons why the exemptions apply are set out below.

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

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to a small amount of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice on this matter, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, so impairing the Scottish Government's ability to take appropriate legal advice. 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.

Section 36(1) - confidentiality in proceedings

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested. 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 decision on whether to appeal decision 193/2024 of the Scottish Information Commissioner to the Court of Session. As you know, this decision was not appealed to the court.

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 created in contemplation of litigation, communications when litigation is either pending or being considered and communications relating to litigation which has been concluded.

38(1)(a) - personal data of the applicant

An exemption under section 38(1)(a) of FOISA (personal information) applies to a very small amount of the information requested because it is personal information of which you are the data subject, and so it is subject to the General Data Protection Regulation and the Data Protection Act 2018. The application of this exemption is limited to a reference to your name in two documents. 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.

38(1)(b) - personal data

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. the names and contact details of junior officials, 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.

Question 2

The decision not to provide the legal advice to the Scottish Information Commissioner during his investigation on this case was taken by the Minister for Parliamentary Affairs.

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 202500448762 - Information released - Annex

File type

PDF

File size

287.4 kB