This week saw the final turn in a sequence of Freedom of Information (Scotland) Act (FOISA) requests for disclosure of legal advice provided to the Scottish Government.
In 2021, a FOISA request was made to the Scottish Government relating to an independent investigator’s investigation into the then First Minister, Nicola Sturgeon. The Scottish Government response was that the information was not held, because the investigator was independent of Scottish Government and not subject to FOISA. The Scottish Information Commissioner (SIC) disagreed with this position and required a new response to be issued. The Scottish Government appealed this decision, through the only mechanism available, which is an appeal to the Inner House of the Court of Session. This appeal was decided on 6 December 2023, in favour of the SIC. In January 2024, the Scottish Government issued a new response to the original 2021 request, withholding certain information on a number of grounds, including on the basis it is covered by legal privilege. This remains under live appeal with the SIC.
Separately, a further FOISA request was made in January 2024 for the separate legal advice given to the Scottish Government in respect of the appeal it took to the Inner House. This request was also refused, on the basis it was legally privileged. In a further appeal to the SIC, the SIC decided on 9 September 2024 that the legal advice should be disclosed as the public interest, in this case, outweighed the application of the exemption of legal privilege (which would ordinarily maintain confidentiality in the legal advice).
The Scottish Government did not then publish its response disclosing the legal advice until 24 October 2024, which the SIC has described as compliance “at the 11th hour”, as the deadline to publish was 26 October 2024. Failure to comply with a direction from the SIC can result in the SIC referring the matter to the Court of Session, which the Court can then inquire into further and as a result may deal with the authority as if it had committed a contempt of court. The SIC has issued a robust statement, and will be communicating concerns with the Scottish Government’s approach to the Permanent Secretary.
The SIC has voluntarily published its own legal advice sought in respect of the appeal made to the Inner House by Scottish Government.
Ultimately these decisions from the SIC affirm that legal privilege will not be an absolute bar to disclosure under FOISA as the public interest must still be applied, and this test will be carefully scrutinised if an appeal reaches the SIC.
This is an important reminder to bodies subject to FOISA, and to legal advisors in this sector. Practitioners and clients should be aware of possible future disclosure of what may often be sensitive legal advice. That said, marking legal advice and communications as confidential and legally privileged and circulating legal advice to only small predetermined groups, remain important and helpful reminders of the fact that a document is privileged in the first place -even if ultimately the public interest test requires disclosure to be made.
If you have questions or need guidance on how to navigate these developments, please feel free to get in touch.
SIC’s decision: Decision 193/2024 | Scottish Information Commissioner
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Privilege no bar to disclosure
This week saw the final turn in a sequence of FOISA requests for disclosure of legal advice.