Freedom of Information department's correspondence that contains any reference to a “third intervention”: FOI release

Information requested

Three requests summarised below with the relevant reference numbers we have used to process them:

202600509939 – “All correspondence sent or received (including internal correspondence) by members of the Scottish Government Freedom of Information department that contains any reference to a “third intervention” within the past month.”

202600509956 – “All correspondence sent or received (including internal correspondence) by appropriate members of the Scottish Government Senior Civil Service that contains any reference to a “third intervention” within the past month.”

202600509958 – “All documentation from March 2026, including briefings, analysis and advice sent to Scottish Government ministers by civil servants about the potential for a "third intervention" by the Scottish Information Commissioner.”

Response

We have interpreted all three requests to refer to the possibility of a “third intervention” by the Scottish Information Commissioner into aspect(s) of our Freedom of Information performance and practices, as referred to by the Commissioner in his letter of 4 March 2026 to the Scottish Government, published on the Commissioner’s website - Microsoft Word - 2026 03 04 SIC to PS Meeting.docx.

Because a considerable amount of information is common to two or more of your requests we are presenting a single response covering all three. We have been clear in the information provided which of your requests each piece of correspondence relates to.

With respect to each of your requests listed above, 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 apply.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested in all three requests. This exemption applies 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 other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on our position regarding the possibility of a third FOI Intervention from the Scottish Information Commissioner will substantially inhibit the provision of such advice in the future, particularly because a third Intervention is only one of a number of options the Scottish Government has to be prepared for and the Commissioner has yet to take a decision on whether to proceed with such an intervention.

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 other officials, as part of the process of exploring and refining the Government’s position on the possibility of a third Intervention, until the Government as a whole can adopt a fully considered position, should a third invention take place. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good 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 decision making process, which would not be in the public interest.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some the information requested in 202600509939 and 202600509956 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.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some information in all three requests because it is personal data of a third party, ie the 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 202600509939 - Information Released - Annex

File type

PDF

File size

170.2 kB