Scottish Government spend on legal costs: FOI Review

Information requested

Original request 202500456930

The total Scottish Government spend on legal costs, including advice and counsel, for any cumulative cost of legal fees over £50k in the last three years, with a breakdown per court case and per costs.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for review.  In seeking your review, you stated "I do not believe GDPR legislation stops applying when a court judgement has been handed down. And as such, I do not believe it can be used to redact information which has not been subject to a court judgement."

I have concluded that a different decision should be substituted.

I have considered the information held by Scottish Government which is relevant to your original request.  I note that some of the entries in the table provided in response to your original request were cases in which Scottish Government Legal Directorate represented third parties rather than the Scottish Government, making those cases outwith the scope of your request.  As a result, I attach with this letter an updated table which omits these entries.

I have also considered the exemption applied to three entries in the original table.  In the original response you received, GDPR was cited as the basis for the exemption.

I have concluded that in relation to two entries in the attach table (those of the first page of the attached table), the information about the names of the parties (other than the Scottish Government) should be withheld on the basis that disclosure of this information would be likely to substantially prejudice the conduct of public affairs.  Specifically, disclosure of the identities of these parties would inhibit other in the future who may wish to wish to raise a court challenge against the decisions of the Scottish Government.  I consider that it is important that any individual or organisation should feel able to challenge a decision of the Scottish Ministers in the courts without having to also accept the public disclosure of their identity.  As a result, this information has been withheld under section 30(c) of FOISA.  

This exemption is subject to the public interest test under section 2 of FOISA.  I have considered the public interest in obtaining information about the identities of parties to litigation against the Scottish Ministers.  I have noted that the cases involve the use of public funds and that there is a the public interest in how such funds are spent.  I have also noted that whilst the legal outcome of a case may be routinely reported (in legal case report and in the media etc), the identity of all the parties (other than the Scottish Government) is not always made public.   There is no legal requirement on a party to a court action to reveal their identity in public.   It is likely that if the identify of a party was always revealed, this would inhibit some individuals and organisations from taking court action, and this inhibition would cause substantial prejudice to the protection and assertion of their legal rights.  I have concluded that the public interest in this case is greater in preventing the likelihood of substantial prejudice than in releasing the information sought.

In relation to the last of the entries in the attached table, I have concluded that the information about the name of the recipient of the funding should be withheld as this is personal data.  I understand your request for review to be arguing that GDPR does not apply where a court has handed down a judgement.  This is not my understanding of the application of data protection law.  Disclosure of the personal data in this situation would be contrary to the data protection principles.  As a result, the first condition under section 38(1)(b) is met and this information is exempt.  As a result, this information has been withheld under section 38(1)(b) of FOISA.  

The exemption is subject to the public interest test in section 2 of FOISA.  I have considered the public interest in obtaining information about the identities of those individuals who have received funding from the Scottish Ministers.  I have noted that such applications involve the use of public funds and that there is a the public interest in how such funds are spent.  I have also noted, however, that there is no requirement for any applicant to Scottish Ministers for funding to have their personal data made public.  The information remains their personal data and is subject to the provisions of data protection law which governs the circumstances when, and how, it may be processed.  As a result, I have concluded that the public interest in applying the exemption under section 38(1)(b) in this case is greater than the public interest in obtaining the information.

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FOI 202500462249 - Information released - Revised table

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