Press statement on Decision 111/2012 Ms Catherine Stihler MEP and the Scottish Ministers

11 July 2012

Commissioner's decision requires Ministers to confirm whether they held referendum legal advice

The Scottish Information Commissioner has issued a decision requiring the Scottish Ministers to reveal whether or not they held legal advice in May 2011 on the status of an independent Scotland within the European Union.

The Ministers had responded to a freedom of information (FOI) request from Catherine Stihler MEP for a copy of any legal advice by refusing to reveal whether relevant advice was held. Under Scotland's FOI law, in limited circumstances a public authority can refuse to reveal whether information is held. A refusal of this type can be issued where:

  • the information would be exempt from release under one of a limited number of specified exemptions in the FOI Act if it was held; and
  • the authority considers it would be contrary to the public interest to reveal whether the information existed or was held.

In her consideration of the case, Scottish Information Commissioner Rosemary Agnew concluded that, if legal advice on this matter was held by Ministers, it would, at the time of the request, have been exempt from release under two of the Scottish FOI Act's exemptions. However, she also found that to reveal whether or not the information was held would not have been contrary to the public interest.

In considering the public interest, the Commissioner's decision states:

"In the Commissioner's view, the role of [the FOI Act] is important not only in ensuring transparency in information held by public authorities, but also in enabling transparency in information about process?In this case, the Commissioner considers that it is in the public interest to know the type of information that the Ministers were taking into account in developing policy in relation to such a significant issue as independence."

The Commissioner requires the Ministers to reveal to the requester whether or not the legal advice existed or was held at the time of the request by 21 August 2012. This period takes into account the 42 days that the Commissioner must give public authorities to comply with her decisions.

The full text of the Commissioner's decision is available online at



About the decision:

  • The decision - Decision 111/2012 - relates to a request made to the Scottish Ministers by Catherine Stihler MEP.
  • Ms Stihler wrote to the Ministers on 30 May 2011 to request a copy of any legal advice given to the Ministers on the subject of the status of Scotland within the European Union, should Scotland choose to break away from the United Kingdom.
  • The Ministers responded on 4 August 2011, giving notice under section 18(1) of the FOI Act. This allows authorities to refuse to reveal whether information exists or is held by them in circumstances where, if it did exist, it would be exempt under any of a number of specified exemptions, and where the authority considers that to reveal whether it exists or is held would be contrary to the public interest. The Ministers informed Ms Stihler that the exemptions under section 29(1)(a) and section 30(c) of the FOI Act would apply, if the advice existed and was held.
  • Section 29(1)(a) exempts information that relates to the formulation or development of government policy, while 30(c) exempts information where release would prejudice substantially the effective conduct of public affairs.
  • Ms Stihler requested a review of the Ministers' decision on 18 August 2011, and the Ministers responded, upholding their previous decision in full, on 16 September 2011. Ms Stihler appealed to the Commissioner on 14 October 2011.
  • In coming to her decision, the Commissioner was required to consider the position at the time the Ministers carried out their review of the original request - i.e. the position during September 2011.
  • The Commissioner's decision was issued to the Scottish Ministers and Ms Stihler on 6 July 2012.
  • The full text of the decision available at


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