The Scottish Information Commissioner is the independent public official responsible for promoting and enforcing Scotland’s freedom of information (FOI) Law. FOI gives everyone the right to access information held by Scottish public authorities. This is the first time a commissioner has taken steps to refer a matter to the Supreme Court.
The decision to which the Court of Session ruling relates - Decision 065/2025 - required that the Scottish Government disclose all communications relating to its decision to appeal the earlier case and conduct further searches for information that it may hold.
During the consideration of that case, the Scottish Government relied on a little-used provision of Scotland’s FOI Act (section 50(5)) which enabled it to refuse to supply legally privileged communications to the Commissioner.
The Commissioner was therefore placed in the extremely unusual position of being required to reach a decision on the disclosure of information without access to the specific information in question. In coming to his decision, the Commissioner recognised that information which is subject to legal professional privilege should only be disclosed under FOI in the circumstances where the public interest in disclosure outweighs the significant and substantial public interest in non-disclosure. In this case, however, the Commissioner found (as one relevant consideration amongst others) that the description of the information provided by the Scottish Government as “standard official level correspondence” lent weight to a conclusion that the public interest favoured disclosure.
Furthermore, the Commissioner had, in relation to an earlier case (Decision 193/2024), previously instructed that any actual legal advice in this case be disclosed. He subsequently received the Scottish Government’s assurances that this had been done.
As a consequence, the requester amended their application to specifically exclude legal advice. In light of this, it was understood that there would be no legal advice in the withheld information.
During the recent court case, however, it became apparent that this was not the case. The Court of Session has since accepted a late appeal from the Scottish Government in relation to Decision 193/2024 (the Government arguing that it does not accept the Commissioner’s interpretation of the request in that earlier case).
The Court of Session’s ruling concluded that the balance of the public interest in this case favours the non-disclosure of the communications in question and goes on to give Legal Professional Privileged information, in the Commissioner’s view, a status beyond that intended by the provisions of the FOI Act.
