Commissioner publishes second Stihler decision on legal advice

News release: 7 October 2013

The Scottish Information Commissioner, Rosemary Agnew, has today published her second decision on the Scottish Government's responses to Catherine Stihler MEP's request for "legal advice on the status of Scotland within the EU should Scotland choose to break away from the United Kingdom".

Decision 219/2013 finds that the Government was entitled to withhold legal advice under the terms of the Freedom of Information (Scotland) Act 2002. This was because the legal advice includes information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings (legal professional privilege). While (at the time of Ms Stihler's request for review) there was a significant public interest in the disclosure of the information, this did not outweigh the public interest in withholding it as the issue of Scotland's membership post-referendum remained under active discussion, and the Government's policy position had yet to be published.

The decision also comments on the Government's handling of the request, particularly noting that an overly narrow interpretation has created unnecessary and avoidable confusion and speculation.

30 May 2011 Ms Stihler made her initial request to the Scottish Government 
04 Aug 2011 The Scottish Government refused to confirm or deny whether the legal advice was held 
 06 Jul 2012 The Scottish Information Commissioner issued Decision 111/2012, ordering the Scottish Government to reveal whether the legal advice was held. See the Commissioner's statement on Decision 111/2012. The Government appealed this decision to the Court of Session. 
 23 Oct 2012  The Deputy First Minister announced to the Scottish Parliament that the Government had not sought legal advice on the topic. Commissioner welcomes Government's decision to abandon appeal.
 23 Nov 2012 The Government provided a new response to Ms Stihler, meeting the requirements of Decision 111/2012, advising her that it did not hold any specific advice. 
 29 Nov 2012 The Commissioner published responses to request for information relating to Decision 111/2012
 21 Dec 2012 Ms Stihler asked the Government to review its decision. 
 19 Mar 2013  The Government provided the response to the review, advising Ms Stihler that it held underpinning legal advice which it declined to release.
 28 Mar 2013 Ms Stihler made her second appeal to the Scottish Information Commissioner. 

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