Legal advice relating to Scottish Information Commissioner decision: statement

On 9 September 2024 the Scottish Information Commissioner issued a decision notice (193/2024) requiring the Scottish Ministers to disclose legal advice in connection with its Court of Session case against the Scottish Information Commissioner (case XA10/23).  

The information had been withheld by the Scottish Government in response to a Freedom of Information request as it considered that the Government should have been able to receive the advice in confidence under “legal professional privilege” and that the public interest was not sufficient to override this exemption. 

The Commissioner, in responding to an appeal from the requester, took a different view - that considerations favouring release in this case outweighed those for maintaining legal professional privilege.   

That decision of the Commissioner was carefully considered by The Scottish Government and it was decided to release the information. 

The material being disclosed outlines that Scottish Ministers took decisions informed by appropriate analysis of the legal considerations and on an important point of principle which was acknowledged as addressing a ‘sharp and important question of statutory interpretation’ in the Court of Session’s judgement.  

The released documentation confirms that Ministers had been advised that there were reasonable prospects of success in taking an appeal. The documentation also shows that Ministers had discussed the legal advice with the Lord Advocate, the most senior government legal adviser, who was content that there were proper grounds for appealing and who agreed with Ministers that the decision should be appealed. 

There is a longstanding convention, observed by Scottish, UK and other governments, that government does not disclose legal advice except in exceptional circumstances.  This ensures that government can access full, frank and confidential legal advice, just as other organisations and individuals are able to.  The ability to access such advice is central to the effective conduct of government in the public interest.   

The Scottish Government disagrees with the Commissioner’s reasoning in his decision and considers that there were good grounds for a successful appeal to the Court of Session had it chosen to do so. It considers that it is important to emphasise that while minimising further cost to the taxpayer. 

The Scottish Government’s publication of the material in this case does not set any precedent for its position on releasing other information that is subject to legal professional privilege. Nor does the Scottish Information Commissioner’s decision represent a binding legal precedent.   

The Government will continue to apply the relevant exemptions, in line with the Freedom of Information (Scotland) Act 2002, and will follow the Scottish Ministerial Code in relation to legal advice.  It will also closely monitor Scottish Information Commissioner decisions relating to the release of legally privileged information and will refer them to the Court of Session if it considers that appropriate in future. 

Related information 

• Legal advice given to the Scottish Government/ministers in reference to The Scottish Ministers v The Scottish Information Commissioner (case reference number XA10/23): FOI Appeal