Scottish Solicitors Bar Association documentation and legal aid trainee fund: FOI release

Information requested

1. Could you supply all documentation held by the Scottish Government that is from or mentions the Scottish Solicitors Bar Association, including correspondence (including internal), briefing, minutes/notes from meetings and analysis, from the last month (February 20 to March 20)?

2. Could you supply all documentation held by the Scottish Government that is about the legal aid trainee fund including correspondence (including internal), briefing, minutes/notes from meetings and analysis, from the last six months?

Response

Question 1 – Could you supply all documentation held by the Scottish Government that is from or mentions the Scottish Solicitors Bar Association, including correspondence (including internal), briefing, minutes/notes from meetings and analysis from the last month (February 20 to March 20)?

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 section 30(b)(i) free and frank provision of advice, section.30(b)(ii) free and frank exchange of views for the purpose of deliberation of FOISA applied to that information and for section.38(1)(b) personal data relating to a third party. The reasons why these exemptions apply are explained below in the Annex to this letter.

Question 2 - Could you supply all documentation held by the Scottish Government that is about the legal aid trainee fund including correspondence (including internal), briefing, minutes/notes from meetings and analysis, from the last six months?

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 section 29(1)(a) - formulation or development of Scottish Government policy, section 30(b)(i) – free and frank provision of advice, section.30(b)(ii) free and frank exchange of views for the purpose of deliberation of FOISA applies to that information and for section.38(1)(b) personal data relating to a third party. The reasons why these exemptions apply are explained below in the Annex to this letter.

The information that is not exempt has been provided to you attached to this letter.

ANNEX A

Section 29(1)(a) - Formulation or development of Scottish Government policy.

An exemption under section 29 of FOISA (formulation or development of Government policy) applies to a document containing some of the information requested. This document is exempt from disclosure as it relates to the formulation or development of government policy.

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 allowing a private space within which officials can develop policy.

Section 30(b)(i) – free and frank provision of advice [in relation to Cabinet/ Ministerial/official discussions and policy formulation/development]

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to one document containing some of the information requested re: the Scottish Solicitors Bar Association. This exemption applies to the information contained in the full document because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. All information pertaining to Scottish Solicitors Bar Association/SSBA has been released from the document.

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 allowing a private space within which officials can provide full and frank advice to Ministers.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation [in relation to Cabinet/Ministerial/official discussions and policy formulation/development]

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on the Legal Aid Traineeship Fund will substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and decisions have not been taken.

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 allowing Ministers and officials a private space within which to explore and refine the Government’s policy position on the Legal Aid Traineeship Fund, and in relation to discussions with the Scottish Solicitors Bar Association until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Section 38(1)(b) - personal data the disclosure of which would contravene data protection principles.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested in respect of questions 1 and 2 because it is personal data of a third party, i.e. names/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.

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 202500458288 - Information Released - Annex

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