Press Statement: further clarification following the disclosure of legal advice by the Scottish Government

29 October 2024

On 26 October 2024 the Scottish Government complied with a decision by the Commissioner which required it to disclose the legal advice it received in relation to a 2023 court appeal. The Commissioner has previously published further background information on this, and related appeals.

In order to provide further clarification and aid understanding of this complex case, the Commissioner makes the following additional points:

• The Commissioner’s Decision 193/2024 required the Scottish Ministers to disclose the legal advice referenced above. If the Ministers had failed to comply with the Decision, the Commissioner would have had the right to certify to the Court of Session that the Ministers had failed to comply.  The Court would then have had has the right to inquire into the matter and may have dealt with the authority as if it had committed a contempt of court. 
   
• The Commissioner accepted in Decision 193/2024 that legal advice privilege applied to the legal advice. However, where this exemption is relied upon the authority must go on to consider the public interest in relation to the information.  Although there is a strong inherent public interest in relation to the confidentiality of legally privileged information, it is not an absolute exemption, meaning it must be disclosed when consideration of the public interest favours release.  
   
• There have been two previous cases where the Commissioner has required the Scottish Ministers to disclose legal advice:
  • Decision 109/2010
  • Decision 048/2022
     
• It should be noted that the Commissioner considers that the redaction of the identity of the civil servant offering secretariat support was entirely appropriate in the circumstances of this case. Indeed, the Commissioner’s decision notes that the redaction of personal data may be appropriate in this case.
   
• The Commissioner’s costs associated with the appeal to the Court of Session amounted to £29,223.80. £27,470 of this has been recouped from the Scottish Government. 
   
• The Commissioner currently has five open appeals which concern requests for information relating to the James Hamilton report. More information on these appeals is available here.