Legal costs incurred to challenge the release of information: FOI release

Information requested

Any legal costs incurred over the last five years by the Scottish Government or other agencies to challenge the release of information requested via freedom of information requests.

Costs may include those paid to lawyers and external barristers. Please provide details of every legal case.

Response

Background

If a person is dissatisfied with a Scottish public authorities’ response to a request for information and remains unhappy following a review decision, the person has the right to appeal to the Scottish Information Commissioner. The Commissioner is the independent public official responsible for promoting and enforcing Scotland's freedom of information (FOI) law.

The Commissioner will then investigate and determine whether the authority has dealt with the request in accordance with the requirements of FOISA. If the Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) they will issue a decision which sets out the action the authority is required to take in order to comply with the decision. This can include, for example, ordering the disclosure of information or directing the authority to reconsider the case afresh.

Response

In your request, you ask for any legal costs incurred over the last five years by the Scottish Government or other agencies to challenge the release of information requested via freedom of information requests.

In this period, the Scottish Government, including its Executive Agencies (Accountant in Bankruptcy, Disclosure Scotland, Education Scotland, Scottish Prison Service, Scottish Public Pensions Agency, Social Security Scotland and Student Awards Agency Scotland) have challenged one decision issued by the Scottish Information Commissioner. This decision did not require the disclosure of information but required the Scottish Government to carry out a further review and respond to the applicant afresh.

The Scottish Ministers appealed Decision 004/2023 | Scottish Information Commissioner to the Court of Session. The Court of Session refused the Ministers' appeal. The Court of Session Opinion, published on 19 December 2023, can be read here: Case: XA10-23 | Scottish Courts. A further review was undertaken and a fresh response issued in compliance with 004/2023.

Details of the net cost of external legal fees for the Court of Session appeal against the Scottish Information Commissioner are available from Scottish Government legal costs incurred: FOI release - gov.scot. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

As noted in this publication, we do not have details of internal legal costs associated with this case. Scottish Government staff, including those working within the Scottish Government Legal Directorate, do not as a matter of course, record the proportion of time spent providing advice on particular matters. This is a formal notice under section 17(1) of FOISA confirming that the Scottish Government does not have information setting out the internal legal costs in relation to this case.

About FOI

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