9 September 2024
The Scottish Information Commissioner has today [9 September] issued a decision which requires the Scottish Government to disclose the legal advice it received on whether an earlier decision of the Commissioner should be appealed to the Court of Session.
In the earlier decision, the Commissioner ruled that information relating to James Hamilton’s investigation into former First Minister Nicola Sturgeon under the Ministerial Code was held by the Scottish Government and should therefore be considered by it when responding to freedom of information (FOI) requests. This decision was appealed to the Court of Session in March 2023, with the Court swiftly finding in favour of the Commissioner in December 2023.
Following the Court’s ruling, a member of the public requested copies of legal advice received by the Scottish Government relating to its decision to appeal. The Scottish Government refused this request, citing the FOI Act exemption which protects confidential legal information. This refusal was subsequently appealed to the Commissioner.
Under FOI law, most exemptions which allow information to be withheld must be set aside in circumstances where the public interest in the disclosure of the information is stronger than that in withholding.
In his new decision , the Commissioner finds that, while the FOI Act’s ‘confidentiality’ exemption will apply to the advice in question, he nevertheless finds that the consideration of the public interest in this case favours disclosure. He therefore requires that the legal advice be disclosed, with certain information, such as personal information, redacted.
The circumstances of this case are particularly unusual in that, on this occasion, the Scottish Government exercised a rarely-used right to withhold information from the Commissioner when he considered the appeal. While relevant information must normally be provided to the Commissioner, the FOI Act allows legal advice to be withheld where the advice relates to an organisation’s obligations under FOI law . The Commissioner’s ruling was therefore made without direct sight of the legal advice.
In reaching his decision, the Commissioner recognises the strong public interest in maintaining the confidentiality of communications between a legal adviser and its client. However, in the specific circumstances of this case, the Commissioner notes that the appeal involved significant expenditure of public funds, and that the Court acted swiftly in its refusal of the appeal. The Commissioner therefore considers that there is a strong public interest in understanding whether or not the authority proceeded with its court action against the legal advice received.
The Commissioner also notes that, under FOI law, it is the duty of a public authority to justify its conclusions for the application of any exemption, and to demonstrate where the balance of the public interest lies in cases where this test applies. The integrity of this exemption must be protected by ensuring it is applied with due consideration of the public interest in every case.
The Commissioner’s decision notes that the submissions made by the Scottish Government in this regard were largely generic, with limited reference to the specific circumstances of the case.
The decision concludes by noting that:
“The Commissioner expects to be enabled to carry out a full investigation of the public authority’s handling of the request…where he is only given the information to perform a more superficial examination, the actions of even an apparently reasonable authority are unlikely to prevail”.
The Commissioner’s decision requires that information be disclosed by 26 October 2024.
Should either the applicant or the public authority which to appeal against the Commissioner’s decision, they may appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of the decision.
