Legal advice and correspondence relating to operation branchform: FOI release

Information requested

1. The cost of any legal advice - either from the Scottish Government's legal directorate or from external advisers/counsel - in regards to Operation Branchform.
2. Any internal correspondence among senior civil servants, special advisers, and ministers (including any attachments or referenced briefings) on the topic of Operation Branchform.

Response

Attached s a copy of some of the information requested. 

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested.

I am unable to provide you with a figure for the total number of staff or staff costs because in line with usual practice, details of individual tasks carried out by civil servants, including the number of hours spent on them, are not routinely recorded because there is no business need to do this. This is a formal notice under Section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.

The Scottish Government did not take legal advice from external advisers/counsel in regards to Operation Branchform. This is a formal notice under Section 17(1) of FOISA that the Scottish Government does not have some of the information you have requested.

Some of the information you have requested is available from previous requests under FOISA, published on the Scottish Government website.

• https://www.gov.scot/publications/foi-202300351077
• https://www.gov.scot/publications/foi-202300353098
• https://www.gov.scot/publications/foi-202300353106
• https://www.gov.scot/publications/foi-202300361223
• https://www.gov.scot/publications/foi-202300363848

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

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 under section s.38(1)(b) (personal information) of FOISA applies to a small amount of the information requested because it is personal data of the names/contact details of more junior officials and third parties, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.

This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

We are unable to provide some of the information you have requested because exemptions under sections s.30(b)(i) (free and frank provision of advice); s.30(b)(ii) (free and frank exchange of views for the purposes of deliberation); s.30(c) (effective conduct of public affairs); s.35(1)(a) (prevention or detection of crime); s.36(1) (confidentiality of communications) of FOISA apply to that information. The reasons why these exemptions apply are explained below.

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation.

The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position. Disclosing the content of free and frank briefing material will substantially inhibit such advice being provided in the future, particularly because these discussions relate to a sensitive issue.

These exemptions are 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 free and frank advice and views to Ministers. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exemption under section 30(c) of FOISA (substantial prejudice to effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the information, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, been sighted or provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on this and other legal issues. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter.

An exemption under section 35(1)(a) FOISA applies to the information because disclosure would, or would be likely to, substantially prejudice an ongoing Police investigation.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered whether 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 as this could provide insight into Police Scotland investigations. However, I have concluded that there is a greater public interest in enabling Police Scotland to exercise their functions in relation to the prevention, detection or investigation of crime without those functions being prejudiced.

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.

There is a very strong public interest in maintaining confidentiality of communications between legal adviser and client on administration of justice grounds. It is clearly in the public interest for lawyers to be able to provide free and frank legal advice to their clients, considering and discussing all issues and options, without fear that the advice might be disclosed and potentially taken out of context. It is also in the public interest that decisions are taken by the Government in a fully informed legal context. Ministers and officials therefore need high-quality, comprehensive legal advice for the effective conduct of their business. That advice needs to be given in context, and with a full appreciation of relevant facts. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.

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.

FOI202300368382 - Information released

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