Scottish Government and public bodies relating to section 34 of the Victims, Witnesses and Justice Reform (Scotland) Act 2025: FOI release

Information requested

"All correspondence, advice and information between the Scottish Government and other public bodies, as well as internally within the Scottish Government, relating to section 34 of the Victims, Witnesses and Justice Reform (Scotland) Act 2025. This should be all correspondence from 1st of March 2025 to present day, including when the section was in the form of amendment 239 at stage 2 proceedings, amendment 64 at stage 3 proceedings, and in the form of the working title 29ZB."

Response

I enclose a copy of some of the information you requested. Where the description of the information states that its 'an extract within scope' this means that it has been taken from a document where the majority of information aside from the extract is out of scope of the request.

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 an exemptions under sections 29(1)(a) (policy formulation), 30(b)(i) (free and frank advice). 30(b)(ii) (free and frank exchange of views), 36(1) (legal advice) and 38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption(s) applies are explained below.

Section 29(1)(a) - Development of Scottish Government policy

This exemption applies because some of the information relates to development of Scottish Government policy. 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 high quality policy and decision-making, and in the properly considered development of policies and decisions.

This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on decisions will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Section 30(b)(i) - Free and frank provision of advice

This 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 purposes of deliberation. The exemption recognises the need for Ministers to have a private space within which to seek advice and views from officials. Disclosing the content of free and frank briefing material will substantially inhibit such briefing in the future. 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 free and frank advice and views to Ministers to fully inform decision-making. 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(b)(ii) - Free and frank exchange of views

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views. This exemption recognises the need for Ministers and officials to have a private space within which to discuss issues and options with each other and with stakeholders before reaching a settled Scottish Government view. Taking into account of all the circumstances of this case, we have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise 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 to communicate internally and with external stakeholders as part of process of exploring both the positions of the government and the stakeholders on the issue. This private space is essential to enable all options to be properly considered, before decisions can be taken based on fully informed discussions, advice and evidence. Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials and stakeholders, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Section 36(1) - Confidentiality of communications (legal advice)

This exemption applies because this information is subject to legal professional privilege. Taking into account of all the circumstances of this case, 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 can receive legal advice in confidence like any other public or private organisation.

Section 38(1)(b) - Third party personal information

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 202600509553 - Information Released - Annex

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