Scottish Information Commissioner's ruling No.004/2023: FOI release

Information requested

In relation to the Scottish Information Commissioner's ruling No.004/2023 and the decision
by Scottish Ministers to appeal this ruling:

1. Which Scottish Minister(s) decided to appeal the above ruling and/or gave the the go-ahead to appeal?
2. Any and all internal and external correspondence including emails, letters, WhatsApp messages, Signal messages, text messages and minutes relating to government business from officials, ministers, and special advisers and any other interested party relating to the decision to appeal the Scottish Information Commissioner’s decision?
3. Any and all internal and external correspondence including emails, letters, WhatsApp messages, Signal messages, text messages and minutes relating to government business from officials, ministers, and special advisers and any other interested party relating to the consideration of how to respond to the Scottish Information Commissioner’s decision notice.
4. When was the last time that the Scottish Ministers appealed the ruling of the Scottish Information Commissioner?

Response

1. The Minister that approved the decision to appeal the Scottish Information Commissioner’s Decision Notice 004/2023 was the Deputy First Minister at the time, John Swinney MSP.

2. and 3. While our aim is to provide information wherever possible, in this case we are unable to provide the information requested because a exemptions at section 25(1) (information otherwise accessible) and section 36(1) (confidentiality of communications) of FOISA apply to the information that you have requested at parts 2) and 3) of your request. The reasons why the exemptions apply are set out in the Annex to this letter.

4. As you will be aware the Scottish Ministers last lodged an appeal on a Scottish Information Commissioner Decision in relation to Decision Notice 004/2023. This appeal was lodged on 14 March 2023, the day before you made your request. Prior to this, the Scottish Ministers last appealed a Decision made by the Scottish Information Commissioner in 2020. Details about the appeal can be found on the Scottish Information Commissioner’s website.

ANNEX
REASONS FOR NOT PROVIDING INFORMATION
Exemptions apply

Section 25(1) (information otherwise accessible)
The exemption at section 25(1) (information otherwise accessible) applies to a small amount of the information that you have requested at parts 2) and 3) of your request. This is because that information is correspondence with you, and you already have copies. Under section 25(1) of FOISA, we do not have to give you information that is already reasonably accessible to you.

Section 36(1) (confidentiality in communications)
The exemption at section 36(1) of FOISA applies to the majority of information requested at parts 2) and 3) of your request because the information is subject to legal professional privilege- specifically litigation privilege (“communications post litem motam”) and legal advice privilege. Litigation privilege applies to information created in contemplation of litigation and to communications when litigation is either pending or being considered. The litigation in question is the appeal by the Scottish Ministers against the decision of the Office of the Scottish Information Commissioner dated 31 January 2023, which is now subject to live proceedings in the Court of Session, lodged on 14 March 2023. Therefore, disclosure of the information 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 when litigation is being contemplated or when it is taking place, and allowing the matter to proceed through the court without prejudice.

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.