Historic injustice apology: FOI release

Information requested

You asked for information relation to three apologies for historic injustice by the Scottish Government, namely those relating to historical adoption practices, criminalisation of same-sex male relations and persecution of women accused of witchcraft.

The information you sought about each apology is:
1. All outputs of research commissioned and/or undertaken by the Scottish Government in preparation for the apology.
2. The final specification of that research as agreed between the Scottish Government and any contractor or supplier, or such equivalent specification, overview or brief for research undertaken in-house.
3. Any final memoranda from policy officers to the Scottish Ministers in relation to the apology.
4. Any legal advice given to the Scottish Government by solicitors and counsel (but not the Lord Advocate) in relation to the apology.

You also asked: 
1. Whether the Scottish Government has, since devolution, consulted the Lord Advocate on the issue of apologies by it for historical events, and, if so, whether the Scottish Government would agree to disclose that advice, in the public interests.

Response

Attached is a copy of some of the information requested. 

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption(s) under sections 29(1)(a), 30(b)(i), 36(1) and 38(1)(b) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation of the Scottish Government’s policy on apologies.

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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the making of these apologies will be disclosed in the near future, when it may
undermine or constrain the Government’s view on that policy while it is still under discussion and development.

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to [Ministers/other officials]* before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on the arguments for and against making apologies on these matters and the form that such apologies could take risks substantially inhibit the provision of such advice in the future.

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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers as part of the process of exploring and refining the Government’s position on apologies for historical injustices, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision-making process, which would not be in the public interest.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is 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, 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.

With regards to your question concerning whether the Lord Advocate has been consulted on the question of apologies, we do endeavour to provide information whenever possible. However, under section 18(1) of FOISA, a public authority may refuse a request where:

• if the information existed and was held by the authority, it would be exempt from release under any of sections 28 to 35, 38, 39(1) or 41 of FOISA; and
• the authority considers that to reveal whether the information exists, or is held by it, would be contrary to the public interest.

In this instance, if the information you request did exist or was held by us, an exemption under section 29(1)(c) of FOISA would apply to that information. This exemption would apply because it would relate to the provision of advice by the Law Officers. We also consider that to reveal whether the information you have requested exists, or is held by the Scottish Government, would be contrary to the public interest. For these reasons, we are refusing your request under section 18(1) of FOISA.

An exemption under section 38(1)(b) (personal data) applies to some of the information you havei requested. This exemption is not subject to the 'public interest test'.

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.

FOI202300368384 - Information released

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37 page PDF

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988.6 kB