"Tinker Housing experiments": FOI review

Information requested

1. Provide us with copies of the legal advice which your government has received on this matter.
2. Provide a comprehensive explanation as to why the Scottish Government is unable to apologise on this, yet is able to apologise for various other historical injustice which preceded devolution such as those referred to above.

Response

I have concluded that the original decision should be confirmed, with modifications.

In relation to point 1 of your request, I have reconsidered if an exemption under section 36(1) of FOISA (confidentiality) applies to the information requested. I consider that it does. This is because the information requested is copies of 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, I have reconsidered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption.

I recognise that there is some public interest in release, namely to support open and transparent government, and as you note in your request for review, to enhance 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. I do not consider that the passage of time is such, as to shift the balance of the public interest in favour of disclosure.

I also considered your argument, set out in your request for review, that there are questions as to the accuracy of what is referred to as “the stated position of the Scottish Government”, and that there is public interest in disclosure to allow the accuracy of advice to be tested. I consider that this is addressed in my response to point 1 of your request, and I do not consider that the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients has been outweighed in this instance.

In relation to point 1 of your request, I have considered if any additional information can be provided in response to your request for, “a comprehensive explanation as to why the Scottish Government is unable to apologise on this, yet is able to apologise for various other historical injustice which preceded devolution such as those referred to above”, and I can provide the additional explanation set out below.

In your letter to the First Minister of 7 June 2022, which contained your original request for information under FOISA, you included a statement attributed to the Scottish Government, that, “initial legal advice suggested that the Scottish Government could not apologise directly for actions taken by others, during a time which precedes devolution.”

This statement appears to be based on a misunderstanding of exchanges within the Scottish Government at that time. The Scottish Government does not hold information constituting legal advice indicating that Scottish Ministers cannot apologise for matters that pre-date devolution.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.