Correspondence regarding Non- Domestic Rates (Scotland) Act 2020: FOI release

Information requested

You asked for copies of all recorded communications between Scottish Government Ministers and officials during August 2025 that relate to concerns about the legislative competence of the Non-Domestic Rates (Scotland) Act 2020. This includes emails, submissions, briefings, notes of meetings, and any other recorded correspondence.

Response

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 section 30(b) (prejudice the effective conduct of public affairs), section 36(1) (confidentiality in legal proceedings) and section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex to this letter.

Annex to the response letter- Reasons for not providing information

An exemption applies

An exemption(s) under section 38(1)(b) (personal information) of FOISA applies to some of the information you have requested because it is the personal data of a third party, i.e. the names or 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.

Exemptions apply subject to the public interest test

An exemption under section s.30(b)(i) (free and frank provision of advice) of FOISA applies to some of the information you have requested.

The exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purpose of deliberation.

The exemption recognises the need for Ministers or officials to have a private space within which to discuss issues and options internally before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on a potential error with the Non-Domestic Rates (Scotland) Act 2020 will substantially inhibit the provision of advice or views in the future, particularly because all non-domestic rates policy is set out in legislation and discussed regularly in the context of the Scottish Budget each year.

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 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 full and frank advice to Ministers and other officials as part of the process of exploring and refining the Government’s policy position on non-domestic rates until the Government as a whole can adopt a decision that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence. Premature disclosure is likely to undermine the full and frank discussion of issues within the Scottish Government, which in turn will undermine the quality of the decision- making process and which would not be in the public interest.

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.

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 202500496157 - Information Released - Documents

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