First Minister's meetings with the Lord Advocate on specific dates: FOI release

Information requested

I wish to make a Freedom of Information Request for the dates the First Minister John Swinney had meetings with the Lord Advocate Dorothy Bain in 2025 & 2026.

Plus the minutes of the meetings

Response

In order to respond to this FOI request, and based on the wording of the request, a decision has been made that it is a proportionate and reasonable interpretation that the request relates specifically to meetings between the First Minister and the Lord Advocate where the Lord Advocate has been the principle attendee.

The dates the First Minister John Swinney had meetings with the Lord Advocate Dorothy Bain in 2025 & 2026 are provided in ANNEX A.

The minutes of the meetings are provided in ANNEX B.

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 sections 29(1)(a), 28(1), 30(c), 32(1)(a)(i), 36(1), and 38(1)(b) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

Section 28(1) – Relations within the UK

An exemption under section 28(1) of FOISA applies to some of the information you have requested. Information is exempt under section 28 (1) if disclosure would, or would be likely to, prejudice substantially relations between administrations in the UK.

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 because disclosure would enhance public scrutiny of Government decision making. However, this is outweighed by the public interest in maintaining relations between the different administrations within the UK.

Section 29(1)(a) – formulation or development of government policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on prison population policy.

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 high quality policy and decision-making, and in the properly considered implementation and 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 prison population policy 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(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 revealing the source of the Scottish Government’s legal advice would be likely to 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 32(1)(a)(i) - International relations (UK & other State(s), int org/court, UK interests abroad)

An exemption under section 32(1)(a)(i) of FOISA applies to some of the information requested because disclosure would, or would be likely to, prejudice substantially relations between the United Kingdom and the governments of other states. The effective conduct of international relations depends upon maintaining trust and confidence between the UK Government and other states. In this case, disclosing information about Scottish Government engagement with another state would substantially prejudice relations between the UK and that state because there is a need to maintain confidential dialogue in order to ensure that future engagement can take place in a spirit of trust and openness.

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 ensuring that the UK Government is able to maintain good relations with other states, in order to protect and promote UK interests. There can be no public interest in jeopardising those relations by the Scottish Government disclosing this information.

Section 36(1) – Confidentiality (claim to confidentiality of communications could be maintained in legal proceedings)

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 and in protecting the confidentiality of communications that could be maintained in legal proceedings.

Section 38(1)(b) – applicant has asked for 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 of junior members of staff, and 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 202600518084 - Information Released - Annex A and Annex B

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