The Scottish Information Commissioner - It's Public Knowledge
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163.While not binding on the Commissioner, the Commissioner broadly agrees with the reasoning set out by the High Court and has adopted that reasoning here.He has also taken account of the guidance given in his briefing on the exemption in section 36(1) of FOISA[1].

164.In the High Court, Mr Justice Wynn Williams upheld a line of decisions from the Information Tribunal in which it was determined that there is a significant in-built weight of public interest in maintaining the equivalent of the section 36(1) exemption in FOISA (the equivalent exemption is contained in section 42 of FOIA).[2]This is, according to Mr Justice Wynn Williams, because of the strong constitutional importance attached to legal professional privilege and, thereby, the protection of free and frank communications between lawyers and their clients.This was summed up, according to Mr Justice Wynn Williams, in the case of R v Derby Magistrates Court ex parte P [1996] 1 AC487, where Lord Taylor stated at page 507D:

"Legal professional privilege is much more than an ordinary rule of evidence, limited in its application to the facts of a particular case.It is a fundamental condition on which the administration of justice as a whole rests."

165.Mr Justice Wynn Williams stated at paragraphs 41 and 53 of his judgement:

"It is also common ground, however, that the task of the Tribunal, ultimately, is to apply the test formulated in section 2(2)(b) [of FOIA, the equivalent of section 2(1)(b) of FOISA].A person seeking information from a government department does not have to demonstrate that "exceptional circumstances" exist which justify disclosure.Section 42 is not to be elevated "by the back door" to an absolute exemption.As [counsel for the Information Commissioner] submits in her Skeleton Argument, it is for the public authority to demonstrate on the balance of probability that the scales weigh in favour of the information being withheld.That is as true of a case in which section 42 is being considered as it is in relation to a case which involves consideration of any qualified exemption under FOIA.Section 42 cases are different simply because the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise once it is established that legal professional privilege attaches to the document in question.

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The in-built public interest in withholding information to which legal professional privilege applies is acknowledged to command significant weight.Accordingly, the proper approach for the Tribunal was to acknowledge and give effect to the significant weight to be afforded to the exemption; in any event ascertain whether there were particular or further factors in the instant case which pointed to non-disclosure and then consider whether the features supporting disclosure (including the underlying public interests which favoured disclosure) were of equal weight at the very least."

166.Without necessarily adopting the terminology of an "in-built public interest in non-disclosure", the Commissioner agrees that there are intrinsic public interest arguments in favour of maintaining the exemption and against disclosure of information to which the exemption applies. However, this does not make section 36(1) a de facto absolute exemption and, in the particular circumstances of any case, the balance of the public interest may favour disclosure.

167.The Commissioner considers it useful at this stage to summarise the public interest arguments made by both Mr and Mrs McKie and by the Ministers.

168.During the investigation, Mr McKie was invited to make submissions specifically on the public interest in the disclosure of information which is subject to legal professional privilege.While Mr McKie chose not to do this, the Commissioner has taken into account the general public interest arguments made earlier in the process by Mr and Mrs McKie. These are summarised below and will be referred to later in this decision, as the same arguments are applied to other exemptions.

169.Mr and Mrs McKie's public interest arguments focus on the general issues raised by this case.They comment that the information which has been withheld represents a matter which is very much in the public interest to "ventilate."They are of the view that public opinion is strongly in favour of revealing what happened to Shirley McKie, as evidenced by the degree of media interest and public support.They state that the public have decided that it is extremely important that the Ministers are seen to deal with this case in an open and accountable way and that the refusal generally by the Ministers to disclose such a large amount of information is contrary to open government.

170.Mr and Mrs McKie also comment that many important questions concerning the behaviour of the Ministers, the Lord Advocate, the Crown Office and the SCRO cannot be answered without recourse to the information which has been either withheld or redacted.

171.The Ministers have made specific arguments regarding the disclosure of legal advice. They consider that the danger in disclosure of legal advice is twofold ? first, it would unreasonably expose legal positions to challenge and, second, it may diminish the range and quality of that advice in future, which would in turn damage the quality of the Ministers' decision making.

172.The Ministers have also argued that there is a public interest in ensuring that they can discuss relevant issues with their solicitors and give and receive legal advice in confidence.They argue that decisions taken by the Ministers must be taken, where appropriate, in a fully informed legal context, which may set out the arguments for and against a particular issue.Without such comprehensive advice, the quality of the Government's decision making would be restricted, which would not be in the public interest.

173.The Ministers have also referred to the importance which the courts place on the strong public interest in maintaining the right to confidentiality of communications between legal advisor and client on administration of justice grounds and take the view that such communications should be released only in highly compelling cases.The Ministers do not consider that there are compelling reasons in this case for releasing the legal advice which has been withheld.

174.In line with the recommendation made by Mr Justice Wynn Williams, the Commissioner will now go on to consider the factors both in favour of non-disclosure (i.e. in maintaining the exemption) and in favour of disclosure.He will then weigh the two and, if he finds that the public interest in disclosure is equal to, or more than, the public interest in maintaining the exemption, he will order the information to be disclosed.

The factors in favour of maintaining the exemption (non-disclosure of the information)

175.The factors in favour of maintaining the exemption can be summarised as follows:

  • there is a significant intrinsic public interest in withholding information to which legal professional privilege applies.There is a strong public interest in allowing public authorities, as with any other person or body, to conduct a free exchange of views as to their legal rights and obligation with those advising them without fear of intrusion, save in the most clear cases.
  • the public interest reasons for maintaining legal professional privilege are particularly strong, given that the purpose of the privilege is to serve the administration of justice and to safeguard the right of any person (including any public authority) to obtain frank and realistic legal advice.
  • there is nothing in the information which has been withheld which would reveal wrongdoing by an authority or which would disclose misrepresentation to the public (or others) of advice received (or of an apparently irresponsible or wilful disregarding of advice).
  • at the time the review was carried out, i.e. at the end of 2006, the advice was relatively recent.(The Commissioner notes some Information Tribunal cases which consider advice which was six years old to be "still relatively recent" and advice which is 10 years old to be "not recent".)The information in question dates from 2002 to 2004.Ms McKie's damages claim was still live nine months before the review was carried out.

The factors in favour of disclosing the information

176.The factors in favour of disclosing the information can be summarised as follows:

  • there is recognised to be a general public interest inherent in freedom of information
  • there is a public interest in knowing that Scotland has a fingerprint service which ensures that correct identifications are made and that justice can be served
  • there is a public interest in disclosing information if it reveals wrongdoing or misrepresentation by the Ministers
  • there is a public interest in knowing whether the Ministers knew whether or not the fingerprint in question belonged to Shirley McKie and whether the Ministers held information which could determine whether Scottish fingerprinting standards or processes were inadequate, thereby calling into question other convictions
  • there is a wide-ranging interest in standards of evidence, identification and the prosecution of criminal offences
  • relatively significant sums of public money have been expended.In general the view may be taken that the bigger the amount of public money at stake, the greater the public interest in disclosing information (the Commissioner notes that Information Tribunal decisions where legal advice has been ordered to be disclosed considered the use of ?70 million in tunnel toll income or a ?1 billion pension fund.Clearly, the costs of litigation in this case were markedly lower than this, but the Commissioner considers that it will be relevant to consider the costs to the Scottish purse if it were to be found that the identification of fingerprints was questionable)

Weighing the factors in favour of maintaining the exemption and in favour of disclosing the information

177.The Commissioner first of all notes the intrinsic public interest in withholding information to which legal professional privilege applies.There is a strong public interest in allowing public authorities, as with any other person or body, to conduct a free exchange of views as to their legal rights and obligations with those advising them without fear of intrusion, save in the most clear cases.The public interest reasons for maintaining legal professional privilege are particularly strong, given that the purpose of the privilege is to serve the administration of justice and to safeguard the right of any person (including any public authority) to obtain entirely frank and realistic legal advice.The Commissioner considers that the arguments put forward by the Ministers as to why the information should not be disclosed all fall under this particular heading, given that they relate to matters such as diminishing the quality of legal advice received if it were known that the advice could be disclosed.

178.Mr McKie has argued that the refusal by the Ministers to disclose information is contrary to open government and that it is extremely important that Ministers are seen to deal with this case in an open and accountable way.The Commissioner takes the view that where there has been a significant lack of transparency on the part of a public authority, this will favour disclosure of the information.(He also considers that this must amount to more than mere curiosity about the content of advice.)

179.Mr McKie questions the behaviour of the Ministers, the Lord Advocate, etc. and is concerned that many issues cannot be answered without recourse to the information which has been redacted or withheld.The Commissioner takes the view that information which would reveal wrongdoing by an authority or which would disclose misrepresentation to the public (or others) of advice received (or of an apparently irresponsible or wilful disregarding of advice) would be a factor in favour of disclosure of privileged material.

180.The Commissioner has considered carefully the information that has been withheld. There are significant restrictions, by virtue of section 45 of FOISA, as to what he can say about what is contained in or can be concluded from that information.However, it is reasonable to say in general that he has considered whether there has been any evidence of wrongdoing or misrepresentation, the disclosure of which would be in the public interest.If, for example, he found evidence that Ministers had intentionally drawn out legislation or knew whether the fingerprint belonged to Shirley McKie, there would be public interest in the disclosure of this information.However, having considered the matter carefully, he has come to the view that the content of the information does not provide any such indications which would justify disclosure of the information on such grounds.

181.The Commissioner also notes the Opinion of Lord Hodge in Shirley McKie's action for damages against the Ministers[3], which related to motions made on behalf of Shirley McKie seeking additional expenses under the Court of Session rules after the case had been settled.Counsel for Shirley McKie argued that additional costs should be paid to her on the basis that the Ministers had conducted the defence of the action in an unreasonable way.Counsel suggested that, while the Ministers' behaviour did not amount to an abuse of process, it was nonetheless so reprehensible that the award of expenses should be calculated on a higher scale.The Commissioner does not know what information Lord Hodge had access to when he came to this conclusion, although it is clear had access to the written pleadings in the damages action at their various stages, to the opinion of Lord Wheatley issued after a Procedure Roll debate[4], to certain documents which counsel for both Shirley McKie and the Ministers referred him to, and to the ex parte statements of counsel as to what information was available to the Ministers at different times during the litigation.Having taken this into account, as well as the submissions for both sides, Lord Hodge came to the conclusion that the Ministers had not acted unreasonably or reprehensibly in their conduct of the action for reasons set out in full in his Opinion.

182.Perhaps the most pressing factor in favour of disclosure is the public interest in knowing that Scotland has a fingerprint service which ensures that the correct identification is made and that justice can be served. In this case, it could be argued that the public interest in disclosure of the information is great because of the number of people who have an interest in standards of evidence, identification and the prosecution of criminal offences.The Commissioner is aware of the interest raised by this issue not only within Scotland, but internationally.

183.The Commissioner generally accepts that this is a significant consideration and concludes elsewhere in the decision that it justifies the disclosure of information in the public interest. However, having considered the specific information to which this exemption applies, on balance, the Commissioner has come to the conclusion that the public interest in maintaining the exemption in section 36(1) of FOISA outweighs the public interest in the disclosure of the information.In coming to this conclusion, he has in particular taken account of the very strong public interest in maintaining legal professional privilege on effective public administration grounds.

184.It is clear that the exemption in section 36(1) is not an absolute exemption and, given the factors set out above which highlight the various public interest arguments in favour of disclosing the information and in the Shirley McKie case in general, the Commissioner wishes to make it clear that he has not treated the exemption as absolute in this case.In the circumstances of this particular case, had the Commissioner come to the conclusion that information indicated that the Ministers had acted unreasonably or reprehensibly, he would have ordered disclosure of the relevant information.

185.The Commissioner will now go on to consider the other exemptions relied on by the Ministers.As noted above, most of the information was withheld on the basis of exemptions in sections 29(1)(a) and (b), 30(b) and 36(1).Where the Commissioner has determined that information is exempt under section 36(1) (and that the exemption should be maintained), he is satisfied that the information should be withheld and will not go on to consider any of the other exemptions applied to the information in question.

Section 29(1)(a) ? formulation or development of government policy

186.Under section 29(1)(a) of FOISA, information held by the Scottish Administration is exempt information if it relates to the formulation or development of government policy.The Commissioner takes the view that "formulation" of government policy suggests the early stages of the policy process where options are identified and considered, risks are identified, consultation takes place and recommendations and submissions are presented to the Ministers."Development" suggests the processes involved in reviewing, improving upon or amending existing policy; it can involve piloting, monitoring, analysing, reviewing or recording the effects of existing policy.

187.As can be seen from the Schedule of Documents, a large proportion of the information withheld has been withheld on the basis that it relates to the formulation or development of Government policy.The information in these documents was withheld, either in whole or in part, because the information relates to the determination of the government's evolving policy position (including the presentation of that policy position) on the various issues raised by the Shirley McKie case.

188.The Commissioner is satisfied that the exemption in section 29(1)(a) has been used appropriately, and that the information in question does indeed relate to the formulation or development of government policy as outlined by the Ministers.

189.As noted above, this exemption is subject to the public interest test required by section 2(1)(b) of FOISA.The Ministers have stated that they recognise the considerable public interest in releasing information about the Shirley McKie case and that, in recognition of this fact, they have already released a significant amount of information.However, they believe that, in relation to the information which they have withheld, the public interest in disclosure is outweighed by the public interest in maintaining this exemption on the basis that there is a strong public interest in preserving some private space in which the Government can formulate and develop policy.According to arguments put forward by the Ministers, Ministers and officials need to be free to deliberate openly and frankly, to enable the full exploration of all possible solutions, including those proposals which may not be broadly politically acceptable.

190.Furthermore, according to the Ministers at the time they made their submissions, the Shirley McKie case involved ongoing policy issues, and the Government must be given the space to develop and formulate views and policies without fear that their deliberations will be released which could close off discussions on some options.According to the Ministers, they need to be free to discuss all options among themselves, and their candour in doing so will be affected by their assessment of whether the content of their discussions will be disclosed in the near future, especially when it may undermine or constrain the Government's view on an issue which is ongoing.

191.The Ministers believe that there is also a public interest in ensuring that the Government can conduct rigorous and candid risk assessments of its policies, including consideration of the pros and cons, without there being premature disclosure which might close off discussion and the development of better options, and without fear that the exploration of potential solutions would be subdued or inhibited.

192.Additionally, the Ministers have commented that nothing in the information which has been withheld appears to be of such significance that its release would lead to better off-setting benefit in terms of greater knowledge and understanding.

193.The Commissioner has decided that, given the similarity in the public interest arguments put forward by the Ministers in relation to the exemption in section 29(1)(a) to the arguments put forward in relation to the exemptions in section 29(1)(b), he will address these together.

Section 29(1)(b) ? Ministerial communications

194.Under section 29(1)(b) of FOISA, information held by the Scottish Administration is exempt information if it relates to Ministerial communications.The Commissioner considers that this may include communications made on behalf of Ministers by their private office.

195.This exemption is subject to the public interest test required by section 2(1) of FOISA.

196.The Ministers withheld some information from Mr and Mrs McKie on the basis that it relates to communication between Ministers, including communications between Ministerial Private Secretaries on behalf of their Ministers.

197.Having considered the information which has been withheld under section 29(1)(b), the Commissioner is satisfied that the information which has been withheld has been correctly withheld under section 29(1)(b), in that it relates to Ministerial communications.

198.Again, when commenting on the public interest test when considering this particular exemption, the Ministers state that they have recognised the considerable public interest in releasing information about the Shirley McKie case and, consequently, have already released a significant amount of information.However, they believe that, in relation to the documents which they have withheld, the public interest in disclosure is outweighed by the public interest in maintaining the exemption, because they believe that there is a strong public interest in preserving some private space in which Ministers can communicate with their colleagues and functions collectively as "the Scottish Ministers".They argue that Ministers need to be free to deliberate openly and frankly, to enable the full exploration of all possible solutions including those which may not be broadly politically acceptable.

199.The Ministers also argued, at the time of making their submissions, that the Shirley McKie case was very much an ongoing area of discussion.As a result, they believe that Ministers must be given the space to develop and formulate views and policies without fear that their deliberations will be released which could close off discussions on some options.They need to be free to discuss all options amongst themselves and their candour in doing so will be affected by their assessment of whether the content of their discussions will be disclosed in the near future, especially when, as in this case, it may undermine or constrain the Government's view on an issue which is ongoing.

200.The Ministers have also argued that there is a public interest in ensuring that Ministers can conduct rigorous and candid risk assessments of their policies, including consideration of the pros and cons, without there being premature disclosure which might close off discussion and the development of better options and without fear that the exploration of potential solutions would be subdued or inhibited.

201.Again, the Ministers submitted that nothing in the withheld information appears to be of such significance that its release would lead to off-setting benefit in terms of greater knowledge and understanding.

Sections 29(1)(a) and (b) - public interest test

202.The exemptions in section 29(1)(a) and (b) are subject to the public interest test set out in section 2(1)(b) of FOISA.Therefore, although the Commissioner has determined that the exemptions apply, he is required to go on to consider whether the public interest in the maintenance of the exemption outweighs the public interest in the disclosure of the information.Unless it does, he must order disclosure of the information.

203.The Commissioner has noted the concerns of the Ministers about the disclosure of the information withheld under these exemptions, which focus on the effect which the disclosure of the information could have both to matters related to the Shirley McKie case and, more generally, to future policy formulation and development and to Ministerial communications in the future.

204.He has also noted the public interest arguments put forward by Mr and Mrs McKie (which are set out more fully above) and which focus on the very significant degree of public interest in this particular matter.

205.While the Commissioner understands the basis of the concerns raised by the Ministers, he does not consider that the disclosure of the information in question in this particular case would justify withholding the information, particularly when weighed against the public interest in the disclosure of information in this particular case. There is a significant public interest in knowing that Scotland has a fingerprint service which ensures that correct identifications are made and that justice can be served and there are a considerable number of people who have an interest in standards of evidence, identification and the prosecution of criminal offences.

206.In addition, the Commissioner does not consider that disclosing the information would be premature, but instead takes the view that disclosure of the information would provide an insight into the key steps taken to develop the policy in question, thereby contributing to the public interest.

207.On balance, therefore, the Commissioner has come to the conclusion that the public interest in the disclosure of the information outweighs that in the maintenance of the exemptions in section 29(1)(a) and (b) of FOISA.

Section 30(b)(i) and (ii) ? free and frank advice or exchange of views

208.Under section 30(b) of FOISA, information is exempt information if its disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice (section 30(b)(i)) or the free and frank exchange of views for the purposes of deliberation (section 30(b)(ii)).Public authorities must assess whether officials or other parties would be deterred from providing advice or views for deliberation in future, if information is disclosed, and consider whether this would cause significant harm to the way in which they carry out their business.Although it may be difficult to judge how likely it is that disclosure would cause officials to be inhibited from providing advice or views, the exemption cannot be applied unless there are reasonable grounds for anticipating that disclosure would, or would be likely to cause, substantial inhibition.

209.In assessing the sensitivity of information, the Commissioner takes account of matters such as the subject matter; the content of the information; the manner in which advice or an opinion is expressed and the timing of the disclosure. The Commissioner recognises, for example, that releasing advice or opinions while a decision is being considered, and for which further views are still being sought, might be more substantially inhibiting than after a decision has been taken.

210.Both of the exemptions in section 30(b) are subject to the public interest test required by section 2(1) of FOISA.

211.A significant proportion of the information withheld by the Ministers has been withheld under these exemptions.According to the Ministers, they applied these exemptions on the basis that an organisation must have an ability, and continue to have an ability, to communicate freely and frankly.The Ministers comment that an organisation's position on any issue does not typically emerge fully formed.Rather, it is usually the result of careful discussion and the exchange of views of various internal and, sometimes, external stakeholders.For the Government, this process includes providing advice to Ministers, who must make the ultimate judgement.It is, according to the Ministers, vital that they and officials feel able to, and indeed do, express and debate their views frankly and confidentially.The Ministers clearly believe this is especially important when the information relates to what they describe as a sensitive and controversial case, particularly on which work was, at the time of the Ministers' submissions, ongoing.

212.As noted above, the exemptions in section 30(b) are subject to a "harm test", in that they can apply only where disclosure would, or would be likely to, inhibit substantially, the free and frank provision of advice or the free and frank exchange of views for the purposes of deliberation.

213.The Ministers consider that disclosure of specific communications, often (although not necessarily) containing advice and discussion, would be likely to inhibit substantially the free and frank provision of advice and exchange of views for the purpose of deliberation.The Ministers have submitted that it is very likely that exchanges of this nature would be jeopardised if these communications were considered suitable for release while the issues are still relevant to the development of current policy or thinking in what is a sensitive area.They believe that officials could feel constrained from offering full and frank advice on future occasions if they were concerned that their comments would be made public in such circumstances.This would, according to the Ministers, be to the substantial detriment of the policy and decision-making process.

214.The Commissioner will first of all consider whether disclosure of the information in question would, or would be likely to, inhibit substantially the free and frank provision of advice and/or, as relevant, the free and frank provision of exchange of views for the purposes of deliberation.

215.There is no definition of substantial prejudice in FOISA, but the Commissioner takes the view that, in order to claim either of the exemptions in section 30(b), the damage caused by disclosing the information must be both real and significant, as opposed to hypothetical or marginal, and that the damage would have to occur in the near future, and not at some distant time.

216.In addition, it should be noted that the exemptions can only be applied where disclosure would, or would be "likely", to cause harm.The Commissioner therefore takes the view that there must be a significant probability that the required degree of harm would occur in order for the exemptions to apply.The Commissioner expects public authorities to be specific about the type of harm which is, or would be, likely to occur.If there is only a remote possibility that the conduct of public affairs will be harmed by officials or other parties being inhibited from providing advice or exchanging views, then the exemptions will not apply.

217.A wide range of information has been withheld under either or both of these exemptions.In many cases, the advice or exchanges are communicated and received as part of the individuals' expected day-to-day professional functions, despite the fact that the subject matter of the advice or exchanges relates to such a high profile matter.The Commissioner considers that this diminishes the risk of substantial inhibition.

218.On the other hand, the Commissioner considers that the sensitivity of the advice or views may be relevant in considering whether disclosure would, or would be likely to, inhibit substantially the provision of advice or exchange of views.In looking at the question of sensitivity, the Commissioner will take account of matters such as the subject matter of the advice or opinion, the content of the advice or opinion, the manner in which the advice or opinion is expressed and timing.

219.The Commissioner has considered each of the documents withheld under these exemptions.However, given the large number of documents withheld, the Commissioner has will set out his findings in general terms, rather than commenting separately on each document.(The Ministers themselves have given only very general submissions covering a wide range of information, and these are summarised above.)The Commissioner considers it sufficient to say that there are some exchanges, the disclosure of which would not, and would not be likely to, inhibit substantially either the provision of advice or the exchange of views for the purposes of deliberation.In particular, the disclosure of information which relates to exchanges in relation to matters which were concluded at the time of Mr and Mrs McKie's requests (such as on the question of liability for the fingerprint officers in question or in relation to drafting responses to PQs and correspondence), particularly where the exchanges were administrative or were parts of an individual's everyday professional activities, is, in the Commissioner's view, unlikely to inhibit substantially, or be likely to inhibit substantially, the provision of advice or exchange of views, either in relation to this particular case or more generally.

220.On the other hand, the Commissioner accepts that the disclosure of some of the information, particularly where it relates to matters which were still ongoing at the time of Mr and Mrs McKie's requests (e.g. in relation to Shirley McKie's action for damages), would or would be likely to inhibit substantially the provision of advice or the exchange of views, particularly in relation to the matter in question, if not more generally.

221.Given that the Commissioner has determined that some of the information in question is exempt under either section 30(b)(i) and/or section 30(b)(ii), he is required to go on to consider the public interest test as set down in section 2(1)(b) of FOISA in relation to that information.However, given the wide range of information being withheld under these exemptions, and the subject matter of the information which has been withheld, the Commissioner considers it appropriate to consider the public interest in relation to all of the information which has been withheld under the exemptions in section 30(b).

Public interest test

222.The requirements of the public interest test as set down in section 2(1)(b) have already been addressed at various points in this decision.

223.As with the other exemptions which are subject to the public interest test, the Ministers state that they have recognised the considerable public interest in releasing information about the Shirley McKie case, as a result of which they have already disclosed a significant amount of information.However, they believe that, in relation to the documents which have been withheld, the public interest in disclosure is outweighed by that in maintaining these exemptions.

224.The Ministers have commented that there is a strong public interest in high quality policy and decision making and that, for Government to succeed in upholding that public interest, officials need to be free to consider, as in any other organisation, all available options, however unpalatable.They need to be able to debate those options rigorously, to expose all their merits and demerits and to understand their possible implications, without the fear of premature disclosure which might close off discussion and development of better options.Their candour in doing so will be affected by their assessment of whether the content of their discussions will be disclosed in the near future, especially when it may undermine or constrain the Government's view on settled policy or policy that is at the time under discussion and development.The Ministers have also argued that inappropriate disclosure also has the potential, not only to limit the full and frank discussion of issues between Ministers and officials, but may also distort public perceptions of advice provided by officials.The prospect of early disclosure therefore has the potential to affect the impartiality of the advice provided.

225.The Ministers also believe that, in this particular case, releasing the information would add nothing significant to the public understanding of this issue, because there is already a good deal of information in the public domain and the disclosure of the information which has been withheld would not add anything new or useful.

226.Again, the Ministers have argued that it is in the public interest for Ministers to be able to rely on high quality advice, particularly in decision-making where issues are of such a highly contentious nature as they are in this case.The Ministers consider that there is a strong public interest in maintaining the integrity of the process of giving free and frank advice in this sort of case.The knowledge of possible disclosure might inhibit provision of advice in the future and impair the candour and freedom with which papers are prepared, deliberated and revised in future.This, in turn, is likely to have a detrimental effect on the efficiency and quality of decision-making.

227.The Ministers have also argued that there is a strong public interest in ensuring that, where necessary, advice in the areas of ongoing policy development can take place in a non-public area which will enable rigorous and frank debate without fear that such considerations will be picked over out of context.They argue that it is in the public interest for decision-making to be based on the best advice available, with a full consideration of all the options, including those that may not be immediately considered to be broadly politically acceptable.

228.One aspect of this, according to the Ministers, is the public interest in protecting the impartiality of the civil service.This applies where a particular release of official advice might create the risk that officials could come under political or public pressure not to challenge ideas in the formulation of policy, thus leading to poorer decision making.

229.The Ministers comment that while they appreciate that the public interest test must be considered on a case by case basis, it can also be that the information requested relates to an important and ongoing process, in this case, the inquiries into the Shirley McKie case, and there can be a public interest in the protection of a process in itself.For example, the Ministers argue that there is a public interest in protecting internal communications in cases where the likely effect of releasing information would be the suppression of effective communication in the future, for example, because the advice or deliberations would be oral instead of being written down.However, the Ministers recognise that it is not the case that the public interest lies in withholding internal communications simply because officials have used strong or trenchant language.

230.The general public interest arguments made by Mr and Mrs McKie are set out above.These focus on the very substantial media and public interest in finding out what happened to Shirley McKie and in ensuring that the Ministers are seen to deal with the whole case in an open and accountable way.

231.The Commissioner has considered carefully the different views put forward by the Ministers and by Mr and Mrs McKie, and has come to the conclusion that, on balance, the public interest in the maintenance of the exemptions is outweighed by the public interest in the disclosure of the information.

232.While he notes the concerns raised by the Ministers as to the possible effects which the disclosure of the information could have on the quality of advice given to Ministers, in general, he does not consider that the disclosure of the information in question would justify withholding the information in this case, particularly when weighed against the public interest in the disclosure of information in this particular case, such as the public interest in knowing that Scotland has a fingerprint service which ensures that correct identifications are made and that justice can be served, and the number of people who have an interest in standards of evidence, identification and the prosecution of criminal offences.While the exemptions in section 30(b) are subject to the public interest test, there is not the same intrinsic public interest in maintaining the exemption as there is with the section 36(1) exemption.

233.The Commissioner concludes that, on balance, the public interest in disclosure of the information in question outweighs the public interest in maintaining the exemption.While he recognises the concerns which the Ministers may have about the disclosure of the information, he considers that the background to the Shirley McKie case is unique; the disclosure of information should reflect those unique circumstances and should not be viewed as suggesting that all information falling into this category should be disclosed in future.This should alleviate concerns about the general effect (sometimes referred to as the "chilling effect") which disclosure of this type of information may have on public authorities.


DECISION

The Commissioner finds that the Scottish Ministers generally complied with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information requests made by Mr and Mrs Iain McKie.While the Commissioner finds that the Ministers were entitled to withhold information on the basis of the exemptions in sections 25(1), 33(1)(b), 36(1) and (2) and 38(1)(b) of FOISA, he finds that the Ministers were not entitled to withhold some or all of the remaining information under the exemptions in sections 36(1) and (2), 38(1)(b), 35(1)(c), 29(1)(a) and (b) and 30(b)(i) and (ii) of FOISA.The Commissioner's reasons for this are set out in detail above.In failing to disclose this information to Mr and Mrs McKie, the Commissioner finds that the Ministers failed to comply with Part 1 (and, in particular, with section 1(1)) of FOISA).

The Schedule of Documents attached to this decision sets out which information must be disclosed by the Ministers from the various parts of file DDX 15/1/1 and which information does not require to be disclosed.The Ministers must disclose the relevant information from Part 001 to Part 004 of file DDX 15/1/1 to Mr McKie and must disclose the relevant information from Part 005 to Part 012 of file DDX15/1/1 to Mrs McKie.

The Commissioner requires the Ministers to disclose the relevant information to Mr and Mrs McKie by 13 August 2010.

Appeal

Should either Mr McKie or the Ministers wish to appeal against this decision (in relation to the information in Part 001 to Part 004 of file DX 15/1/1) or should either Mrs McKie or the Ministers wish to appeal against this decision (in relation to the information in Part 005 to Part 012 of file DX 15/1/1), there is an appeal to the Court of Session on a point of law only.Any such appeal must be made within 42 days after the date of intimation of this decision notice.

Kevin Dunion
Scottish Information Commissioner
28 June 2010


Appendix

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002

1 General entitlement

(1) A person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority.

?

(6) This section is subject to sections 2, 9, 12 and 14.

?

2 Effect of exemptions

(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to the extent that ?

(a) the provision does not confer absolute exemption; and

(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.

(2) For the purposes of paragraph (a) of subsection 1, the following provisions of Part 2 (and no others) are to be regarded as conferring absolute exemption ?

(a) section 25;

?

(c) section 36(2);

?

(e) in subsection (1) of section 38 ?

?

(ii) paragraph (b) where the first condition referred to in that paragraph is satisfied by virtue of subsection (2)(a)(i) or (b) of that section.

25 Information otherwise accessible

(1) Information which the applicant can reasonably obtain other than by requesting it under section 1(1) is exempt information.

?

29 Formulation of Scottish Administration policy etc.

(1) Information held by the Scottish Administration is exempt information if it relates to-

(a) the formulation or development of government policy;

(b) Ministerial communications;

?

30 Prejudice to effective conduct of public affairs

Information is exempt information if its disclosure under this Act-

?

(b) would, or would be likely to, inhibit substantially-

(i) the free and frank provision of advice; or

(ii) the free and frank exchange of views for the purposes of deliberation; or

?

33Commercial interests and the economy

(1)Information is exempt information if ?

?

(b)its disclosure under this Act would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority).

?

35Law enforcement

(1)Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice substantially ?

?

(c)the administration of justice

36 Confidentiality

(1) Information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings is exempt information.

(2)Information is exempt information if ?

(a)it was obtained by a Scottish public authority from another person (including another such authority); and

(b)its disclosure by the authority so obtaining it to the public (otherwise than under this Act) would constitute a breach of confidence actionable by that person or any other person.

38 Personal information

(1) Information is exempt information if it constitutes-

?

(b) personal data and either the condition mentioned in subsection (2) (the "first condition") or that mentioned in subsection (3) (the "second condition") is satisfied;

?

(2) The first condition is-

(a) in a case where the information falls within any of paragraphs (a) to (d) of the definition of "data" in section 1(1) of the Data Protection Act 1998 (c.29), that the disclosure of the information to a member of the public otherwise than under this Act would contravene-

(i) any of the data protection principles; or

?

(b) in any other case, that such disclosure would contravene any of the data protection principles if the exemptions in section 33A(1) of that Act (which relate to manual data held) were disregarded.

?

(5)In this section -

"the data protection principles" means the principles set out in Part I of Schedule 1 to that Act, as read subject to Part II of that Schedule and to section 27(1) of that Act;

"data subject" and "personal data" have the meanings respectively assigned to those terms by section 1(1) of that Act;

?


Data Protection Act 1998

1 Basic interpretative provisions

(1)In this Act, unless the context otherwise requires ?

?

"personal data" means data which relate to a living individual who can be identified ?

(a) from those data, or

(b)from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual;

?

2Sensitive personal data

In this Act, "sensitive personal data" means personal data consisting of information as to ?

?

(e)his physical or mental health or condition.

?

(g)the commission or alleged offence by him [the data subject] of any offence, or

(h)any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.

Schedule 1 ? The data protection principles

Part I ? The principles

1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless ?

(a)at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.


Schedule 2 ? Conditions relevant for purposes of the first principle: processing of any personal data

...

6. (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

Schedule 3 ? Conditions relevant for purposes of the first principle: processing of sensitive personal data

5 The information contained in the personal data has been made public as a result of stepsdeliberately taken by the data subject.

Schedule of Documents

The schedule of documents can be found in the attached PDF version of this decision on page1.


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[1] The briefing can be viewed here: http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/section36/Section36.aspx

[2] An appeal can be made to the Information Tribunal against a decision of the (UK) Information Commissioner; in Scotland, there is no such Tribunal and all appeals are heard initially by the Court of Session.

[3] [2006] CSOH 54

[4] 2004 SLT 982

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