Former First Minister Legal fees: FOI release

Information requested

Correspondence and documents pertaining to the extensive negotiations mentioned by the Scottish Government spokesman inasmuch as they relate to the amount or make up of the legal fees.

Response

Scottish Government can confirm that final settlement of £512,250 has been made to Mr. Salmond’s agents for legal costs arising from his petition for judicial review. While our aim is to provide information whenever possible, in this instance we are unable to provide the information that you have requested because exemptions under section s.30(c) (prejudice to the effective conduct of public affairs) and 36(1) (legal professional privilege) apply to that information. The reasons why these exemptions apply is explained in the Annex to this letter.
ANNEX A
REASONS FOR NOT PROVIDING INFORMATION
An exemption applies, subject to the public interest test
An exemption under section s.30(c) (substantial prejudice to effective conduct of public affairs) applies to the some of the information you have requested. This is because the information was obtained by the Scottish Government in the course of negotiations for settlement of the expenses of the judicial review. To disclose the information would cause or be likely to cause substantial prejudice to the ability of the Scottish Government to correspond with legal firms where information would ordinarily be shared by those firms in confidence.
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 there is some public interest in ensuring open and transparent government and in informing public debate and in ensuring that appropriate steps have been taken to secure best value for money. However this is outweighed by the strong public interest in ensuring that parties to a negotiation are able to communicate freely about their respective positions in order that they may reach a compromise.
An exemption under section 36(1) (claim to confidentiality of communications) of FOISA applies to some of that information because some of the documents and correspondence are covered by 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.

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