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The Scottish Ministers against The Scottish Information Commissioner (Court of Session)
Summary of Opinion — First Division, Inner House, Court of Session
Factual and Procedural Background
The Appellant, a Scottish public authority ("Appellant"), appealed a decision of the Respondent ("Respondent") under the Freedom of Information (The State) Act 2002. An independent adviser ("Independent Adviser") had investigated whether the then Senior Minister breached the Ministerial Code and produced material that the Appellant was found to "hold" for freedom of information purposes. A third party requester ("Requestor") sought a range of communications and documents produced in relation to earlier appeal proceedings between the Appellant and the Respondent. The Respondent ordered disclosure of certain withheld material, including material said to attract legal professional privilege (LPP). The Appellant challenged only the Respondent's conclusion that the LPP material should be disclosed. The appeal to this court is limited to points of law under section 56 of the Act.
Legal Issues Presented
- Whether the Respondent erred in his approach to the public interest balancing required by section 36(1) of the Freedom of Information (The State) Act 2002 in ordering disclosure of material subject to legal professional privilege.
- Whether the Respondent improperly discounted the weight to be accorded to LPP (including in-house advice and material prepared for litigation) by relying on the description "standard official level correspondence of a type expected when preparing for litigation".
- What, if any, additional weight the Respondent was required to attribute to the protections in section 50(5) (the exclusion from compliance with an information notice) when assessing disclosure of LPP material where the Respondent himself was a party to related litigation.
Arguments of the Parties
Appellant's Arguments
- The Respondent gave insufficient weight to the strong common law protection afforded to legal professional privilege, treating LPP as of lesser importance because the material was described as "standard official level correspondence".
- The Respondent failed to engage properly with the Appellant's explanations as to why the exemption applied (in-house legal advice and material prepared for litigation) and thus reached an irrational conclusion.
- Section 50(5) barred the Respondent from being given the material; because the Respondent was a party to related proceedings, an elevated threshold ("exceptionally compelling reasons") was required to justify disclosure.
- The Respondent conflated public interest curiosity in a high-profile investigation with the legal test required to override LPP.
Respondent's Arguments
- The Respondent followed the appropriate legal approach in line with authorities (including O'Brien), properly balancing competing public interests and applying the section 2 public interest test.
- The Respondent emphasised the public interest in disclosure relating to a matter of sustained public interest and proceeded reasonably given that the Appellant did not permit him to see the withheld material; he therefore relied on the Appellant's description of that material.
- The Respondent contended that section 50(5) did not afford the Appellant a shield against adjudication on the public interest test; the Respondent's not having seen the material did not disqualify him from deciding the issue.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Department for Business, Enterprise and Regulatory Reform v O'Brien [2009] EWHC 164 (QB) | Approach to public interest balancing under FOI and assessment of privilege-related claims. | The Respondent relied on its analysis; the court considered it part of the proper analytical framework but found the Respondent misapplied circumstances here. |
| Scottish Ministers v Scottish Information Commissioner [2023] CSIH 46; 2024 SC 159 | Prior appellate determination that certain investigation material was "held" by the Appellant for FOI purposes. | The court noted this prior decision and the related disclosure history as background; it distinguished the present LPP issue from matters already disclosed pursuant to that earlier decision. |
| R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563; [2002] UKHL 21 | Characterisation of privilege as a fundamental right underpinning administration of justice. | Cited to emphasise the high constitutional importance of LPP which the court said must be properly weighed in any FOI balancing exercise. |
| R v Derby Magistrates' Court, Ex Parte B [1996] AC 487 | Privilege as a fundamental condition on which administration of justice rests. | Used to reinforce the need to accord substantial weight to LPP in the public interest balance. |
| Three Rivers DC v Bank of England (No 6) [2005] 1 AC 610; [2004] UKHL 48 | Recognition that LPP may exclude evidence from tribunals and the enduring nature of privilege ("once privileged, always privileged"). | Supported the court's view that LPP protection extends beyond immediate proceedings and must be treated as carrying long-term administration of justice concerns. |
| British Steel Corp v Granada Television Ltd [1981] AC 1096 | Illustration of public interest in disclosure of official information balanced against competing considerations. | Referenced as part of the established approach to public interest balancing generally. |
| Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 | Principles on reasoning and disclosure in administrative decisions. | Cited to support that the Respondent's decision should contain adequate reasoning as to the public interest conclusion reached. |
| Ministry of Justice v Information Commissioner, EA/2007/0016, 6 August 2007 | Effect of the equivalent exclusion from information notices (section 51(5) in England) and concern that disclosure to the Commissioner may give an unfair advantage and compromise future adjudication. | The court analysed its relevance, noting that the present facts involved the Respondent being an actual opposing party and that the reasoning should have given weight to the implications of the exclusion. |
Court's Reasoning and Analysis
The court framed the central tension between Parliament's decision to subject communications capable of being maintained as confidential in legal proceedings to a statutory qualified exemption (section 36(1)) and the common law protection of legal professional privilege (LPP). It reiterated that LPP has long-standing, high constitutional importance and that the aphorism "once privileged, always privileged" reflects the continuing chilling risk to candid legal advice if confidentiality is not robustly protected.
The court reviewed the Respondent's decision and identified key analytical defects: (a) excessive reliance on the Appellant's description of the withheld material as "standard official level correspondence of a type expected when preparing for litigation", leading to assumptions that diminished the weight to be given to LPP; (b) inadequate engagement with the Appellant's explanations that the material comprised in-house legal advice and documents prepared for litigation, and thus clearly within LPP; and (c) insufficient reasoning to demonstrate that the public interest in disclosure outweighed the strong public interest in maintaining LPP.
The court rejected the Respondent's apparent view that the conclusion of earlier proceedings reduced the significance of LPP protection, emphasising that privilege protects not only against contemporaneous adversaries but also guards against future chilling effects on legal advice. The court endorsed the formulation that "some clear, compelling and specific justification for disclosure must be shown" to override LPP, and found no such justification in the Respondent's reasoning.
On section 50(5), the court noted the additional difficulty posed by the statutory rule excluding compliance with information notices for certain legal communications and the particular problem that the Respondent was both adjudicator and, previously, opposing party. The court observed that the Respondent treated his not having seen the material as a factor favouring disclosure, which the court regarded as illegitimate. Although the section 50(5) issue was discussed, the court's disposition did not rest on it.
Holding and Implications
APPEAL UPHELD
Holding: The court allowed the Appellant's challenge and found that the Respondent erred in law in ordering disclosure of the material over which LPP was claimed.
Implications: The direct effect is that the Respondent's order requiring disclosure of the LPP material is set aside. The court did not determine the precise form of final disposal and put the case out by order for discussion of the appropriate remedy (remit options include full reduction with remit, partial reduction confined to the LPP issue with remit, or quashing the disclosure order without remit). The court declined to establish any broader new principle beyond reaffirming the need for clear, compelling and specific justification before LPP is overridden; no novel precedent beyond that clarification was laid down.
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