FOI/202500456442 · FOI · partially withheld
Communications from independent advisors on the ministerial code: FOI release
Information requested
1) All communications to and from the three new independent advisors on the ministerial code since August 2024.
Response
I enclose a copy of some of the information you requested.
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 30(b)(ii) (free and frank exchange of views); 30(c) (the effective conduct of public affairs); 36(1) (legal advice privilege) and 38(1)(b) (personal data of a third party) of FOISA apply to that information.
The reasons why these exemptions apply are set out in the annex to this letter.
Some of the information you have requested is available in our response to a previous Freedom of Information request. This can be found here:
Meeting between First Minister and advisers on the Scottish Ministerial Code: FOI release - gov.scot Terms of reference - The Scottish Ministerial Code: independent advisers - gov.scot Part A | Ministers' Standards of Conduct - Chapter 1: Scottish Ministers - Scottish Ministerial Code: 2024 Edition - gov.scot
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.
ANNEX
Section 30(b)(ii) of FOISA (free and frank exchange of views)
An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for the requirement of a private space within which to discuss and explore options before a settled view is reached. Disclosing the content of free and frank discussions would substantially inhibit such discussions in the future.
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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing for a private space in which to explore and refine options before a settled view is reached. This private thinking space is essential to enable all options to be properly considered, so that good policy decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.
Section 30(c) (the effective conduct of public affairs)
An exemption under section 30(c) (the effective conduct of public affairs) of FOISA applies to some of the information you have requested. This is to enable the Independent Advisers on the Ministerial Code to be able to consider and discuss issues raised in a private space before formalising the outcome of their deliberations and advising the First Minister of their decisions. As noted at paragraph 5.2 of the Terms of Reference for the Independent Advisers, information provided to them for the purposes of their functions is provided in confidence.
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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, this is outweighed by the public interest in allowing the consideration of complaints received under the Ministerial Code to be undertaken in a private space.
Section 36(1) (legal advice privilege)
An exemption under section 36(1) of FOISA applies to the information requested because it is covered by legal advice privilege. Legal advice privilege applies to information created which is confidential communications between legal advisers and their clients. Disclosure of such information would breach legal professional privilege.
The exemption section 36(1) of FOISA 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 between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence and discuss the implications of that legal advice, like any other public or private organisation. There is a strong public interest in maintaining confidentiality of communications between legal adviser and clients.
It is clearly in the public interest for lawyers to be able to provide free and frank legal advice to their clients, considering and discussing all issues and options, without fear that the advice might be disclosed and potentially taken out of context. It is also in the public interest that decisions are taken by the Government in a fully informed legal context. Ministers and officials therefore need high-quality, comprehensive legal advice for the effective conduct of their business and have the confidential space to discuss the implications of that legal advice. The advice needs to be given in context, and with a full appreciation of relevant facts. Without such legal advice, which can only be provided frankly and comprehensively in the knowledge that it will be kept in confidence, the quality of the Government’s decision-making would be much reduced since it would not be fully informed.
Section 38(1)(b) (personal data of a third party)
Section 38(1)(b) applies to some of the information because it is personal data of a third party, in this case, the names of Scottish Government officials below the level of Senior Civil Servant, and personal email addresses. Disclosing this would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.
This exemption is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.
About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.
Detected exemption language
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 30(b)(ii) (free and frank exchange of views); 30(c) (the effective conduct of public affairs); 36(1) (legal advice privilege) and 38(1)(b) (personal data of a third party) of FOISA apply to that information. The reasons why these exemptions apply are set out in the annex to this letter. This can be found here: Meeting between First Minister and advisers on the Scottish Ministerial Code: FOI release - gov.scot Terms of reference - The Scottish Ministerial Code: independent advisers - gov.scot Part A | Ministers' Standards of Conduct - Chapter 1: Scottish Ministers - Scottish Ministerial Code: 2024 Edition - gov.scot Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. ANNEX Section 30(b)(ii) of FOISA (free and frank exchange of views) An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation.