FOISA s36 (Confidentiality in Legal Proceedings): Legal Professional Privilege can be overridden only by “clear, compelling and specific” public-interest justification

1. Introduction

This appeal concerned the interaction between (i) the common law’s “special and largely inviolable” protection of legal professional privilege (LPP) and (ii) the Freedom of Information (Scotland) Act 2002 (“FOISA”), which—unlike the common law— makes LPP material held by public authorities subject to a qualified exemption and therefore a public-interest test.

The appellant, The Scottish Ministers, challenged a decision of the Scottish Information Commissioner (Decision Notice 065/2025, 18 March 2025) ordering disclosure of certain withheld communications said to be LPP material. The request (7 December 2023) sought internal communications (emails, texts, minutes, etc.) about the Ministers’ earlier appeal in litigation arising out of FOISA.

The dispute arose in the wider context of FOI requests relating to the James Hamilton investigation under the Scottish Ministerial Code. However, the Inner House stressed that the present appeal concerned the public-interest test as applied to LPP material connected to a completed court appeal on a statutory interpretation issue (whether material was “held” under FOISA), not the substantive merits or disclosure of Hamilton-investigation evidence itself.

Key issues

• How should the s2(1)(b) public-interest test be applied where the withheld material is protected by LPP and thus exempt under s36(1)?
• Did the Commissioner err in law by undervaluing the public interest in maintaining LPP, and/or by relying on an irrelevant or insufficient public-interest rationale?
• What is the relevance (if any) of s50(5) (limiting the Commissioner’s power to compel production of certain privileged material) to the s36 public-interest analysis?

2. Summary of the Judgment

The Inner House upheld the Ministers’ appeal on a point of law. While the Commissioner had accepted that the withheld material fell within s36(1), the court held that he erred in his approach to the public-interest balancing exercise.

In particular, the court found that the Commissioner:

• placed undue weight on the description of the material as “standard official level correspondence of a type expected when preparing for litigation”;
• treated the conclusion of the relevant litigation as diminishing the public interest in maintaining LPP (which the court rejected);
• justified disclosure by reference to broad public interest in the Hamilton investigation without explaining how LPP communications about a tangential statutory interpretation appeal would meaningfully advance that debate; and
• failed to identify a clear, compelling and specific justification capable of outweighing the strong public interest in preserving LPP.

The court therefore quashed the Commissioner’s determination insofar as it ordered disclosure of the LPP material, and put the matter out “by order” to discuss the appropriate form of disposal (full reduction/remit; partial reduction/remit; or quashing without remit).

3. Analysis

3.1 Precedents cited (and their influence)

Scottish Ministers v Scottish Information Commissioner [2023] CSIH 46; 2024 SC 159

This earlier Inner House decision formed the procedural springboard: it confirmed that certain Hamilton-investigation material was “held” by the Ministers and thus within FOISA scope. In the present case, it mattered chiefly because it triggered a further request (7 December 2023) for communications about that appeal. The court used it as background, but also as a reminder that the present dispute is narrower: it is about LPP and the public-interest test, not “held” status itself.

British Steel Corp v Granada Television Ltd [1981] AC 1096

Cited for the general proposition that the courts recognise a public interest in disclosure of official information, balanced against countervailing interests such as confidentiality. The Inner House used it to frame the broader “transparency vs competing interests” landscape within which FOI statutes operate, before isolating LPP as a category historically accorded special protection.

R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, [2002] UKHL 21

This authority, via Lord Hoffmann’s characterisation of LPP as “a fundamental human right”, anchored the court’s insistence that LPP is not a mere discretionary confidentiality interest but a systemic rule supporting the administration of justice. The Inner House drew on it to explain why public-interest reasoning must grapple with the broader “chilling effect” of disclosure beyond the instant case.

R v Derby Magistrates' Court, Ex Parte B [1996] AC 487

Lord Taylor CJ’s statement that LPP is “a fundamental condition on which the administration of justice as a whole rests” reinforced the same theme: the privilege exists to secure candid lawyer-client communications, not to protect embarrassment or tactical advantage. The Inner House used it to reject any approach that implicitly treats privilege as just one factor among many, capable of being reduced by generic assertions of public curiosity.

Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610, [2004] UKHL 48

The Inner House cited Lord Rodger’s explanation that LPP may deprive tribunals of useful evidence, but the public interest in proper legal advice outweighs the competing interest in disclosure. This was deployed to rebut the Commissioner’s suggestion (explicit or implicit) that the fact he could not see the withheld material made the Ministers’ case weaker: the privilege is designed precisely to withstand even strong demands for access.

Department for Business, Enterprise and Regulatory Reform v O'Brien [2009] EWHC 164 (QB)

Relied on by the Ministers to argue for a structured and appropriately weighty approach to LPP in FOI balancing exercises. While the Inner House did not treat O’Brien as prescribing a formula, it accepted the underlying point: decision-makers must not pay “lip service” to LPP and must demonstrate, in reasoning, that they have truly weighed the administration-of-justice harm.

Ministry of Justice v Information Commissioner, EA/2007/0016, 6 August 2007

This was central to the arguments about FOISA s50(5) (the Commissioner’s inability to compel production of certain privileged communications relating to proceedings under/ arising out of FOISA). The tribunal’s concern there was “unfair advantage” and the Commissioner’s continuing regulatory relationship with authorities. The Inner House treated this discussion as illuminating, especially given the unusual feature here that the Commissioner had been the Ministers’ opposing party in the earlier litigation. Although not determinative, it underscored the awkwardness of (a) the Commissioner not being entitled to compel sight of certain advice, but (b) nonetheless ordering its public disclosure on a public-interest test without properly addressing the associated risks and statutory design concerns.

Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345

Cited in support of adequacy of reasons. The Commissioner argued his decision met the Wordie Property standard (that the reader should not be left in real and substantial doubt as to why a decision was reached). The Inner House, however, effectively held that—even if reasons were intelligible—the reasoning disclosed an error of law because it did not identify a sufficiently specific and compelling public-interest basis for overriding LPP and appeared to proceed on irrelevant or misconceived considerations.

3.2 Legal reasoning

(a) FOISA deliberately qualifies, but does not trivialise, LPP

The court accepted the statutory premise: FOISA innovates on the common law by making LPP information held by public authorities fall within a qualified exemption (s36(1)), and thus subject to the s2 public-interest test. That legislative choice permits (at least in principle) outcomes where disclosure is ordered despite privilege.

However, the Inner House stressed that nothing in FOISA “dilutes” the underlying administration-of-justice rationale for LPP. The decision-maker’s task is therefore a genuine reconciliation exercise: transparency objectives must be balanced against a privilege interest whose weight is structural and long-recognised, not merely contextual or tactical.

(b) “Standard litigation correspondence” is not a basis to discount privilege

The Commissioner relied heavily on the Ministers’ description that the withheld material was “standard official level correspondence of a type expected when preparing for litigation,” inferring it contained nothing unusual and that confidentiality arguments were therefore less compelling.

The Inner House rejected this logic. Once the material is accepted as LPP, its “ordinariness” does not reduce the public interest in maintaining the privilege. Indeed, much privileged material will be routine; that is not a reason to disclose it. The court also indicated that the Commissioner’s inability to inspect the material (because of the stance taken under s50(5)) may have led him to place more weight on the phrase than it could reasonably bear.

(c) Concluded litigation does not remove the “chilling effect”

A key corrective in the judgment is that privilege is not justified solely by preventing an adversary from seeing advice “during live proceedings.” The longer-term “chilling effect” on candid lawyer-client communications explains why privilege is classically “once privileged, always privileged.” Even though FOISA qualifies the outcome, the reasoning in any disclosure decision must still give full weight to that systemic harm.

(d) The public interest must be specific to the withheld material, not a proxy for public fascination

The Commissioner’s principal public-interest driver was the sustained public controversy surrounding the Hamilton investigation into ministerial code compliance. The Inner House found the connection between that controversy and the specific withheld material (LPP communications about an appeal on the statutory meaning of “held”) to be unexplained and unpersuasive.

The court’s reasoning reflects a classic distinction: information may be “of interest to the public” without it being “in the public interest” to disclose it—especially where the harm side of the balance involves LPP and administration-of-justice considerations.

(e) The required threshold: “clear, compelling and specific justification”

While rejecting the idea that LPP becomes an absolute exemption under FOISA, the court endorsed the formulation (quoted from Coppel, Information Rights) that overriding LPP requires “some clear, compelling and specific justification.”

The error of law identified was not simply that the court would have struck the balance differently; it was that the Commissioner’s reasoning did not disclose anything that could properly meet that standard.

(f) Section 50(5): not decisive, but relevant to the quality of the balancing exercise

The Inner House did not decide the case on s50(5), but flagged serious tensions:

• s50(5) prevents the Commissioner from compelling production of certain privileged communications connected to FOISA obligations or proceedings.
• Yet s36(1) remains qualified, meaning the Commissioner may still order disclosure to the world at large.
• This creates practical and fairness difficulties where the Commissioner must assess privilege/public interest without seeing the material, and especially where the Commissioner has been (as here) the authority’s opposing party in the relevant litigation.

The court was critical of any suggestion that the authority’s reliance on s50(5) (and consequent lack of inspection) could properly be used against it in the public-interest analysis.

3.3 Impact

On FOISA decision-making involving LPP

• Heavier justificatory burden for disclosure: Decision-makers must identify a concrete, case-specific public interest that can rationally outweigh the systemic administration-of-justice harm.
• Routine nature of advice is irrelevant: “Standard” litigation preparation material does not attract less privilege weight.
• Completed litigation does not materially reduce LPP weight: The chilling effect rationale persists beyond the end of a case.
• Public controversy is not enough: Where the requested LPP material is only tangentially related to the controversial subject, the causal link to any claimed public benefit must be articulated and convincing.

On the Commissioner’s reasoning obligations

The decision signals closer appellate scrutiny (on “points of law”) where the reasoning discloses that the Commissioner has: (i) used irrelevant factors, (ii) undervalued the public interest in LPP, or (iii) relied on generalized public concern without explaining how the particular information advances accountability.

On future litigation and FOI requests

Public authorities resisting disclosure under s36(1) will likely cite this case to argue for a more structured articulation of the “administration of justice” harm and the chilling effect, and to challenge any balancing exercise that treats LPP as merely another confidentiality interest. Conversely, requesters will need to frame public-interest submissions more precisely—identifying the specific accountability gain from the particular LPP documents sought (e.g., illegality, misrepresentation, disregard of advice, or already-partial disclosure).

4. Complex concepts simplified

• Legal professional privilege (LPP): A legal rule allowing a client to refuse disclosure of confidential lawyer-client communications. It exists to ensure clients can speak candidly and receive effective advice. It includes:
  • Legal advice privilege: confidential lawyer-client communications for giving/receiving legal advice.
  • Litigation privilege: certain confidential material created for the dominant purpose of actual or contemplated litigation.
• Qualified exemption (FOISA): An exemption that can be overridden if the public interest in disclosure is not outweighed by the public interest in maintaining the exemption. Here, s36(1) is qualified.
• Public-interest test (FOISA s2(1)(b)): A balancing exercise: disclose unless, in all circumstances, the public interest in maintaining the exemption outweighs that in disclosure.
• “Held” information (FOISA s3(2)): Information counts as held by a public authority if it is in its possession (subject to statutory nuances). The earlier litigation concerned whether Hamilton-investigation material was “held.”
• Information notice (FOISA s50): A formal power by which the Commissioner can compel a public authority to provide information needed for an investigation. But s50(5) creates an exception for certain privileged FOISA-related legal communications.
• “Interest to the public” vs “in the public interest”: People may strongly want to see something, but disclosure must be justified by a broader public benefit (e.g., accountability, exposing wrongdoing), especially where disclosure causes systemic harm (like undermining candid legal advice).

5. Conclusion

The Inner House reaffirmed the exceptional constitutional weight of LPP, even within FOISA’s transparency-driven scheme. While FOISA allows LPP to be overridden in principle, the court insisted that any such override must rest on a clear, compelling and specific public-interest justification tied to the particular privileged material—not on broad controversy or generalized curiosity. The decision is a significant recalibration of how s36(1) is to be reasoned and applied, and a warning against diluting privilege by implication (whether because advice is “standard,” proceedings are finished, or the topic is politically charged).