Documentation regarding Right To Addiction Recovery (Scotland) Bill: FOI release

Information requested

Could you supply all documentation held by the Scottish Government, including correspondence sent and received (including internal), minutes/notes from meetings,briefings, analysis, about the Right To Addiction Recovery [Scotland] Bill, for the period 1st to 31st May 2025

Response

Please find enclosed a copy of the material identified as in scope for your request.

While our aim is to provide you information wherever we can, on this occasion we are unable to provide you with some of the information you have requested as statutory exemptions under FOISA apply.

Details on what exemptions apply and why can be found in the annex below.

Some of the information you have requested has been published online and can be found using the link below:

• Letter from Douglas Ross MSP to the Convener of 29 April 2025

Under section 25(1) of FOISA, 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 websites listed, then please contact me again and I will arrange for you to be sent a paper copy.

ANNEX

Sections 30(b)(i) and 30(b)(ii) – free and frank provision of advice and exchange of views for the purposes of deliberation

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank provision of advice and exchange of views for the purposes of deliberation) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation.

The exemptions recognise the need for Ministers and officials to have a private space within which to discuss and explore options, and also provide free and frank advice before the Scottish Government reaches a settled public view. The Scottish Government relies on a private space to ensure that decisions are informed and robust. In this case, the withheld information relates to internal discussions and advice on the Right to Addiction Recovery (Scotland) Bill. Disclosure would risk undermining future policy deliberations, as Ministers and officials need to be able to exchange views and provide advice candidly. If such discussions were routinely made public, participants may feel constrained in offering full and frank opinions, which could reduce the quality of decision-making.

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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 free and frank advice and views to Ministers on proposed legislation. It is clearly in the public interest that Ministers can properly answer questions, provide sound information and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

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 some of the information requested. This exemption applies because the information could compromise internal record-keeping systems. It also reveals the source of the Scottish Government’s legal advice on the Right to Addiction Recovery (Scotland) Bill. This would likely lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to 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 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) – legal advice

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some 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.

The release of the content of such legal advice is likely to be appropriate only in highly compelling cases. This has been recognised by both the Scottish Information Commissioner and the courts.

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

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, ie names and email addresses, 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 202500490529 - Information released - Annex A

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