Decision Notice 106/2024: Correspondence with Teneo Restructuring Limited
Authority: Scottish Ministers
Case Ref: 202200142
Summary
The Applicant asked the Authority for correspondence between Teneo Restructuring Limited and specified
directorates and individuals in 2021. The Authority disclosed one document in redacted form and withheld the
remainder of the information requested under a number of exemptions, particularly that the information was legally
privileged and that the public interest favoured withholding it. 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 any correspondence between Teneo Restructuring Limited (Teneo) and employees of the Authority, specifically
civil servants in the legal directorate or justice directorate, special advisers and the offices of the Lord
Advocate, the First Minister, the Deputy First Minister and the Justice Secretary (including the Ministers
themselves) in 2021.
2. The Authority responded on 20 December 2021. The Authority disclosed one document in redacted form,
withholding personal data (section 38(1)(b) of FOISA) and information that would reveal the source of its legal
advice (section 30(c) of FOISA). The Authority withheld the remaining information on the basis it 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 the Authority had not carried
out adequate searches and he did not consider that it had applied either the exemptions or the public interest
test appropriately.
4. The Authority notified the Applicant of the outcome of its review on 28 January 2022, upholding its
original decision without modification. The Authority explained that its searches had been extensive and all
relevant information had been identified, that the exemptions it applied were correct and that the public interest
test 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:
- there is public interest in the involvement of Teneo with the Authority, particularly given Teneo
specialise in managing the fallout from major scandals
- some but not all of the correspondence requested may fall under litigation privilege (section 36(1) of
FOISA), which should not be used as a blanket exemption
- the Authority has spent a significant amount of public money on litigation support from Teneo and the
high-profile nature of the litigation and the potential monetary consequences of any advice from Teneo meant that
the public interest is overwhelmingly in favour of disclosure of the information requested.
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 16 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 subsequently 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) of FOISA 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 arguments for disclosure of the withheld information.
10. The Applicant did not raise in his application as a matter of dissatisfaction the searches carried out by
the Authority or the Authority’s reliance on section 38(1)(b) of FOISA. The Applicant also confirmed that he did
not require the Commissioner to investigate the Authority’s reliance on section 30(c) of FOISA.
11. Consequently, the Commissioner’s investigation has only considered the Authority’s reliance on section
36(1) of FOISA.
Commissioner’s analysis and findings
12. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.
Section 36(1) - Confidentiality
13. 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 all of the requested
information under this exemption.
14. During the investigation, the Authority confirmed that a single document was considered exempt on the
basis of legal advice privilege, while it continued to withhold the remaining withheld information on the basis of
litigation privilege.
15. Legal advice privilege applies to communications in which legal advice is sought or provided. For legal
advice privilege to apply, certain conditions must be fulfilled.
(i) The information must relate to communications with a professional legal adviser, such as a solicitor or
advocate
(ii) The legal adviser must be acting in their professional capacity, and
(iii) The communications must occur in the context of the legal adviser's professional relationship with their
client.
16. Litigation privilege is different and covers documents created in contemplation of litigation (also known
as communications post litem motam).
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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
23. The Authority submitted that the information requested (except for a single document, which constituted
legal advice) was created solely because of litigation, which was live at the time of the Applicant’s information
request and requirement for review.
24. 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.
25. The Authority noted that some of the correspondence was not between legal advisers, but it still
considered that litigation privilege applied to this information.
26. Regarding the single document it was withholding under legal advice privilege, the Authority explained
that the information is clearly legal advice and that all of the necessary conditions for legal advice privilege
to apply are satisfied.
27. The Authority also submitted that none of the withheld information had 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
28. 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.
29. 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
30. Regarding the information withheld on the basis of legal advice privilege, the Commissioner has considered
the content of the information and the circumstances in which it was created and he is satisfied that the
information meets the conditions for legal advice privilege to apply.
31. All the conditions stated above (in paragraph 15) apply: the information involves communications with a
legal adviser, who is acting in their professional capacity and the communications occur in the context of the
legal adviser’s professional relationship with their client.
32. Regarding the information withheld on the basis of litigation privilege, the Commissioner notes that his
guidance on section 36(1) of FOISA and his previous decisions make clear that the information that can be
considered exempt 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.
33. The Commissioner accepts the Authority’s submission that the content of the withheld information under
consideration here and the advice sought has not been disclosed in such a way as to result in the loss of the
quality of confidence and that it has not been made public, either in full or in summary.
34. Having reviewed the withheld information and considered the Authority’s submissions, the Commissioner is
satisfied that the withheld information was (except for a single document that he is satisfied attracts legal
advice privilege) created in contemplation of litigation and that none of the withheld information has been made
public, either in full or in summary.
35. The Commissioner is not required to consider whether the information that falls to be considered as
litigation privileged would also attract protection by virtue of legal advice privilege.
36. Consequently, the Commissioner accepts that the information withheld by the Authority under section 36(1)
of FOISA is exempt from disclosure.
Public interest test
37. 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
38. The Authority recognised that there is public interest in disclosure of the withheld information as a part
of open, transparent and accountable government.
39. Regarding the single document withheld on the basis of legal advice privilege, the Authority explained
that there is a very strong public interest in maintaining the exemption for the following reasons:
- it remains important in all cases that legal advisers can provide free and frank legal advice which
considers and discusses all issues and options without fear that their advice may later be disclosed and
potentially taken out of context
- in areas such as this, which are the subject of public scrutiny, an expectation that legal advice could be
released would inevitably lead to the legal advice being more circumspect and less effective.
40. Consequently, the Authority stated that it considered there is a strong public interest in protecting the
confidentiality of this information in order to ensure that it was able to discuss and take policy decisions in
full possession of thorough and candid legal advice. This ensures that it can take decisions in a fully-informed
legal context, having received legal advice in confidence as any other client would.
41. On balance, the Authority considered that the public interest in maintaining the exemption outweighs that
in disclosure, given the overriding public interest in maintaining the confidentiality of communications between
lawyers and their clients and the public interest in allowing for full and detailed internal consideration of the
legal issues in relation to the consideration of policy actions in relation to this matter.
42. Regarding the information withheld on the basis of litigation privilege, 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
43. 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).
44. 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.
45. 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
46. 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.
47. 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
48. 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.
49. 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.
50. 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.
51. In summary, the Applicant stated that it would be detrimental to the principles of accountability and
transparency for the 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
52. 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.
53. 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] EWHC 164 (QB) . Generally, the
Commissioner will consider the High Court’s reasoning to be relevant to the application of section 36(1) of FOISA.
54. The Commissioner acknowledges that there will be occasions where the significant public interest in favour of withholding
legally privileged communications may be outweighed by the public interest in disclosure of 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.
55. Having examined withheld information, while the Commissioner accepts that the contents of the legal advice
and 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.
56. 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.
57. 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 obtain confidential legal advice and to engage in
legally privileged communications in contemplation of litigation.
58. 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.
59. 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 correspondence under that exemption.
Decision
The Commissioner finds that the Authority complied with Part 1 of the Freedom of Information (Scotland) Act 2002
(FOISA) 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).
