Information regarding the Ministerial Statement: Legal Advice Relating to Scottish Information Commissioner Decision: FOI Review
Information request and response under the Freedom of Information (Scotland) Act 2002.
Information requested
Original request 202400445432
1) All briefing notes provided to ministers (e.g. John Swinney, Jamie Hepburn) in preparation of the statement to the Scottish Parliament on the 29th of October: Ministerial Statement: Legal Advice Relating to Scottish Information Commissioner Decision by civil servants, SPADs and anyone else.
2) All communications (emails, whatsapps, texts, anything) before, during and after the statement to the Scottish Parliament on the 29th of October: Ministerial Statement: Legal Advice Relating to Scottish Information Commissioner Decision by ministers, civil servants, SPADs and anyone else regarding the preparation of the statement, as well as discussions surrounding it.
3) Did the Scottish Government have any press inquires following the above statement? What were these inquires and what was the Scottish Governments response to them?
Response
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) All briefing notes provided to ministers (e.g. John Swinney, Jamie Hepburn) in preparation of the statement to the Scottish Parliament on the 29th of October: Ministerial Statement: Legal Advice Relating to Scottish Information Commissioner Decision by civil servants, SPADs and anyone else.
2) All communications (emails, whatsapps, texts, anything) before, during and after the statement to the Scottish Parliament on the 29th of October: Ministerial Statement: Legal Advice Relating to Scottish Information Commissioner Decision by ministers, civil servants, SPADs and anyone else regarding the preparation of the statement, as well as discussions surrounding it.
3) Did the Scottish Government have any press inquires following the above statement? What were these inquires and what was the Scottish Governments response to them?
In accordance with section 21(4) of FOISA, I have also reached a decision on your request.
I can now provide our response to your original request. I apologise for the delay in receiving this response, this was due to a significant amount of material found which required to be considered for release.
I have provided Annex A, B and C which provide the information requested respectively in your Questions, 1, 2 and 3. I have interpreted the questions individually, so you may note that some text in Annex A could have been included in Annex B but I have sought to keep Ministerial advice in question 1, separate from other advice in Q2.
I have added some correspondence to the Annex B which does include the First Minister’s Office. However, you will not that this is simply discussion regarding the title of the statement which took place between officials and Special Advisers.
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested due to the application of a number of exemptions.
Section 25 of the Freedom of Information (Scotland) Act 2002 (FOISA) exempts information from disclosure where the requester can reasonably obtain the information without asking for it under FOISA. Please see the full Ministerial Statement: Legal Advice Relating to Scottish Information Commissioner Decision which can be found here: Legal advice relating to Scottish Information Commissioner decision: statement - gov.scot
Section 38(1)(b) (personal information)] and under of FOISA applies to some of the information provided. This has been identified on each annex provided. 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. However, this is outweighed by the public interest in protecting the personal information of junior officials and some of the personal information of senior officials and legal advisers.
Another exemption(under section (section 36(1) of FOISA applies to some of the information you have requested. Legal professional privilege allows for legal advice to be sought and given in a confidential manner. 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. However, this is outweighed by the public interest in allowing Ministers and policy makers, confidential advice and guidance in these matters.
A further exemption applies; Section 30 of the Freedom of Information (Scotland) Act 2002 (FOISA), (ii) inhibit substantially the free and frank provision of advice and (iii) inhibit substantially the free and frank exchange of views for the purposes of deliberation.
These exemptions are 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. However, this is outweighed by the public interest in allowing Ministers, advisers and policy makers space to deliberate and discuss matters freely and entirely to ensure the best outcome from careful consideration.
Finally, Section 30(c) – the effective conduct of public affairs applies to some of the information provided. 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. However, this is outweighed by the public interest in allowing Ministers and policy makers, confidential advice and guidance in these matters.
About FOI
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Contact
Please quote the FOI reference
Central Correspondence Unit
Email: contactus@gov.scot
Phone: 0300 244 4000
The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG