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Decision 105/2024

Decision Notice 105/2024: Contract and correspondence with Teneo Restructuring Limited

Authority: Scottish Ministers
Case Ref: 202200141


Summary

The Applicant asked the Authority for a copy of specified contract between Teneo Restructuring Ltd and the

Authority and for correspondence relating to that contract.  The Authority withheld most of the information

requested on the basis it was legally privileged and that the public interest favoured withholding the

information, with the remaining information withheld as it constituted personal data.  The Commissioner

investigated and found that the Authority had complied with FOISA in responding to the request.


Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b)

(Effect of exemptions); 36(1) (Confidentiality); 47(1) and (2) (Application for decision by Commissioner)

The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision. The

Appendix forms part of this decision.


Background

1.    On 19 November 2021, the Applicant made a request for information to the Authority.  The Applicant asked

for a copy of the contract  between Teneo Restructuring Limited (Teneo) and the Authority (including a

specification of work being undertaken by the contractor) and for any internal correspondence connected to this

contract (including bids or discussions of bids by Teneo or other considered contractors).

2.    The Authority responded on 17 December 2021.  The Authority disclosed a copy of the redacted contract,

withholding some information in the contract and the remaining information requested on the basis it either

constituted personal data (section 38(1)(b) of FOISA) or it related to litigation proceedings and was therefore

legally privileged (section 36(1) of FOISA) and the public interest test did not favour disclosure of the withheld

information.

3.    On 6 January 2022, the Applicant wrote to the Authority requesting a review of its decision.  The

Applicant stated that he was dissatisfied with the decision because he considered that the Authority was not

entitled to keep entirely secret the reasons for employing a consultancy firm which specialises in public helping

“dramatically change the public’s understanding of a company’s role in high-stakes litigation” through a “well run

communications strategy” (as per its website).  The Applicant also considered that the public interest favoured

disclosure, given the nature of the litigation, the cost of potential damages and the ongoing reputational damage

to the Authority.

4.    The Authority notified the Applicant of the outcome of its review on 1 February 2022, upholding its

original decision without modification.  The Authority explained that it had reconsidered the public interest test

and it concluded that it still did not favour disclosure of the withheld information.

5.    On 2 February 2022, the Applicant wrote to the Commissioner, applying for a decision in terms of section

47(1) of FOISA.  The Applicant stated that he was dissatisfied with the outcome of the Authority’s review for the

following reasons:

  • he did not consider that the exemption in section 36(1) of FOISA had been applied correctly

  • although he dd not dispute the possibility that aspects of the contract may create prejudice to ongoing court 

    cases, he disagreed that a contract worth hundreds of thousands of pounds should be kept secret from the public 

    when it evidently has major implications

  • due to the potential sums of taxpayer money being lost to this litigation, details of this contract should be made 

    public particularly given Teneo specialise in public relations advice and consultancy around high profile court action.

Investigation

6.    The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the

power to carry out an investigation.

7.    On 24 March 2022, the Authority was notified in writing that the Applicant had made a valid application.  

The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority

provided the information and the case was allocated to an investigating officer.

8.    Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide

comments on an application.  The Authority was invited to comment on this application and to answer specific

questions.  These questions related to its reliance on section 36(1) to withhold the requested information.  

9.    The Applicant was provided with a high-level summary of the Authority’s submissions, and he submitted

further public interest test arguments for disclosure of the withheld information.

10.    The Applicant did not raise in his application as a matter of dissatisfaction the Authority’s reliance on 
section 38(1)(b) of FOISA.  Consequently, the Commissioner’s investigation has only considered the Authority’s

reliance on section 36(1) of FOISA.

Commissioner’s analysis and findings

11.    The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.  

Section 36(1) - Confidentiality

12.    Section 36(1) of FOISA exempts from disclosure information in respect of which a claim to confidentiality

of communications could be maintained in legal proceedings.  The Authority withheld the requested information

under this exemption.

13.    Among the types of communication which fall within this category are those which are subject to legal

professional privilege.  One aspect of legal professional privilege is litigation privilege, which covers

documents created in contemplation of litigation (also known as communications post litem motam).

14.    Communications post litem motam are granted confidentiality to ensure that any person or organisation

involved in or contemplating a court action can prepare their case as fully as possible, without the risk that

their opponent/s, or prospective opponent/s, will gain access to the material generated by their preparations.  

The privilege covers communications at the stage when litigation is pending or in contemplation.

15.    Whether a particular document was prepared in contemplation of litigation will be a question of fact, the

key question generally being whether litigation was actually in contemplation at a particular time.

16.    Litigation privilege will apply to documents created by the party to the potential litigation, expert

reports prepared on their behalf and legal advice given (and sought) in relation to the potential litigation.  

However, the communication need not involve a lawyer and the litigation contemplated need never actually happen

for the privilege to apply.  It will continue to apply after any litigation has been concluded.

17.    There is a further matter to be considered, however, before the Commissioner can determine whether, or the

extent to which, the section 36(1) exemption is applicable in the circumstances of this case.

18.    The information cannot be privileged unless it is also confidential.  For the section 36(1) exemption to

apply, the withheld information must be information in respect of which a claim to confidentiality of

communications could be maintained in legal proceedings.  In other words, the claim must have been capable of

being sustained at the time the exemption is claimed.

19.    A claim of confidentiality cannot be maintained where, prior to a public authority's consideration of an

information request or conducting a review, information has been made public, either in full or in a summary

sufficiently detailed to have the effect of disclosing the advice.  Where the confidentiality has been lost in

respect of part or all of the information under consideration, any privilege associated with that information is

also effectively lost.

The Authority's submissions

20.    The Authority submitted that the information requested was created solely because of litigation, which was

live at the time of the Applicant’s information request and requirement for review.

21.    The Authority explained that it considered the exemption applicable as the information requested consisted

of full, frank and confidential correspondence relating to the preparation and defence of litigation proceedings

involving the Lord Advocate.

22.    The Authority noted that some of the correspondence was not between legal advisers, but it still

considered that litigation privilege applied to this information.  

23.    The Authority also submitted that the information requested has not been shared with anyone outwith the

Authority (other than to the Commissioner for the purpose of his investigation), that the information has remained

confidential (and will continue to) and that all of the necessary conditions for legal privilege to apply are

satisfied.

The Applicant’s submissions

24.    The Applicant accepted the high likelihood that some of the withheld information may fall under litigation

privilege, but he did not accept that all of it did.  

25.    The Applicant explained that he believed much of the withheld information may include discussions between

Ministers and officials which may consider litigation, but not be legally privileged.

The Commissioner's view

26.    As noted by the Commissioner in his guidance on section 36(1) of FOISA and in previous decisions, the

information that can be considered exempt under section 36(1) of FOISA is wider than correspondence with legal

advisors.  Providing that the Authority can support its position that the information was created in contemplation

of litigation, section 36(1) of FOISA will apply.  

27.    Having reviewed the withheld information and considered the Authority’s submissions, the Commissioner is

satisfied that the withheld information was created in contemplation of litigation and that it had not been made

public, either in full or in summary.

28.    Given that the Commissioner is satisfied that the information falls to be considered as litigation

privileged, he is not required to consider whether the information would also attract protection by virtue of

legal advice privilege.

29.    Consequently, the Commissioner accepts that the information withheld by the Authority under section 36(1)

of FOISA is exempt from disclosure.

Public interest test

30.    The exemption in section 36(1) is a qualified exemption, which means that its application is subject to

the public interest test set out in section 2(1)(b) of FOISA.  Having decided that the information is exempt under

section 36(1), the Commissioner must go on to consider whether, in all the circumstances of the case, the public 
interest in disclosing the information is outweighed by the public interest in maintaining the exemption.

The Authority’s submissions

31.    The Authority recognised that there is public interest in disclosure of the withheld information as a part

of open, transparent and accountable government.

32.    The Authority noted that the correspondence between it and Teneo was created solely because of litigation,

which was live at the time of the Applicant’s information request and requirement for review

33.    The Authority explained that the purpose of the correspondence was to facilitate investigations into a

court action through the identification, procurement and instruction of independent expert evidence in order to

both provide litigation support to the Lord Advocate on the prospects of defending that court action (potentially

in court).

34.    The Authority stated that it therefore considered that disclosure of the information could prejudice the

ongoing legal proceedings and inhibit the carrying out of legitimate investigations.

35.    On balance, the Authority explained that it considered that the public interest favoured maintaining the

exemption, as there is a strong public interest in maintaining confidentiality of legally privileged

communications on administration of justice grounds.

The Applicant's submissions

36.    The Applicant stated that it is central to the principle of open government that the operation of

government is as transparent as possible, particularly when it comes to accountability for actions taken.

37.    The Applicant explained that the public interest in information requested is significant due to the

millions of pounds in public money that has been lost due to the failures of the Crown Office and it was central

to the principle

38.    The Applicant noted that his request focuses on £400,000 spent on litigation support and he disagreed that

information should be withheld simply because it may at some point have been linked to possible litigation: if

this were the position for all cases, the public would never be able to hold the Authority to account.

39.    The Applicant explained that he considered it reasonable for the requested information to be disclosed to

help the public better understand the reasons behind such a significant public contract, particularly if it is for

public relations and brand management rather than legal action itself.  

40.    The Applicant argued that, even if the contract does relate to solely legal action, the public interest in

disclosure of the information requested far outweighs that in maintaining the exemption.  

41.    In summary, the Applicant stated that it would be detrimental to the principles of accountability and

transparency for this exemption to be upheld and it is fundamental that such information be disclosed to the

public in order for it to be scrutinised.

The Commissioner's view

42.    As the Commissioner has noted in a number of previous decisions, the courts have long recognised the

strong public interest in maintaining the right to confidentiality of communications between legal adviser and

client, on administration of justice grounds.  

43.    In a freedom of information context, the strong inherent public interest in maintaining legal professional

privilege was emphasised by the High Court (of England and Wales) in the case of Department for Business,

Enterprise and Regulatory Reform v Information Commissioner and O'Brien [2009] EWHC164 (QB) . Generally, the

Commissioner will consider the High Court's reasoning to be relevant to the application of section 36(1) of FOISA.

44.    The Commissioner acknowledges that there will be occasions where the significant in-built public interest

in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing

the information.  For example, disclosure may be appropriate where (the list is not exhaustive):

  •  the privileged material discloses wrongdoing by/within an authority
  • the material discloses a misrepresentation to the public of advice received
  • the material discloses an apparently irresponsible and wilful disregard of advice
  • a large number of people are affected by the advice
  • the passage of time is so great that disclosure cannot cause harm.

45.    Having examined withheld information, while the Commissioner accepts that the contents of the legally

privileged communications would be of interest to the Applicant and to the general public, he does not consider

that any of the above categories would apply.

46.    While of interest to the public, the litigation in this case is not of fundamental importance to all

individuals living in Scotland (unlike, for example, the subject matter in Decision 048/2022 ) and the money spent

on the litigation has already been published and reported on, which has enabled a degree of accountability and

scrutiny.

47.    The Commissioner must also take account of the important public interest in legal professional privilege

itself and the public interest in allowing public authorities to engage in legally privileged communications in

contemplation of litigation.

48.    On balance, the Commissioner considers that greater weight should be afforded to the arguments which would

favour withholding the information.  There is a strong public interest in maintaining the right to confidentiality

of communications between legal adviser and client, and he believes, particularly given that the litigation was a

live issue at the date of the Applicant’s requirement for review, that this outweighs the public interest in

disclosing the information under consideration here.

49.    In all the circumstances of this case, therefore, the Commissioner concludes that the public interest in

disclosing the information was outweighed by that in maintaining the exemption in section 36(1) of FOISA.  

Consequently, he finds that the Authority was entitled to withhold the information requested under that exemption.


Decision

The Commissioner finds that the Authority complied with Part 1 of the Freedom of Information (Scotland) Act 2002

in responding to the information request made by the Applicant.


Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to 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

intimation of this decision.


David Hamilton
Scottish Information Commissioner

30 May 2024
 

Appendix 1: Relevant statutory provisions

Freedom of Information (Scotland) Act 2002

1     General entitlement

(1)     A person who requests information from a Scottish public authority which holds it is entitled to be given

it by the authority.

(2)     The person who makes such a request is in this Part and in Parts 2 and 7 referred to as the “applicant.”
…

(6)    This section is subject to sections 2, 9, 12 and 14.


2     Effect of exemptions

(1)     To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to

the extent that – 
…

(b)     in all the circumstances of the case, the public interest in disclosing the information is not outweighed

by that in maintaining the exemption.
…


36     Confidentiality

(1)     Information in respect of which a claim to confidentiality of communications could be maintained in legal

proceedings is exempt information.
…


47     Application for decision by Commissioner

(1)     A person who is dissatisfied with -

(a)     a notice under section 21(5) or (9); or

(b)     the failure of a Scottish public authority to which a requirement for review was made to give such a

notice.

may make application to the Commissioner for a decision whether, in any respect specified in that application, the

request for information to which the requirement relates has been dealt with in accordance with Part 1 of this

Act.

(2)     An application under subsection (1) must -

(a)     be in writing or in another form which, by reason of its having some permanency, is capable of being used

for subsequent reference (as, for example, a recording made on audio or video tape);

(b)     state the name of the applicant and an address for correspondence; and

(c)     specify –

(i)   the request for information to which the requirement for review relates;

(ii)   the matter which was specified under sub-paragraph (ii) of section 20(3)(c);

and

(iii)  the matter which gives rise to the dissatisfaction mentioned in subsection (1).