Decisions Round-up: 16 to 20 January 2017

This week's round-up looks in more detail at the public interest test when looking at legal advice and how we deal with cases where a requester denies receiving a response that the authority says it sent.

Learning points:

  • Legal advice -why it's unlikely to be disclosed
    There will always be a strong public interest in ensuring that communications between legal advisers and their clients are confidential . Even if legal advice relates to matters of considerable public concern, it may not be possible to justify disclosure. In Decision 001/2017, we looked at just such a request. The request was for the Lord Advocate's legal advice relating to the "Named Person" legislation. We accepted that there was a strong public interest in favour of disclosure, but also had to take account of the general public interest in maintaining the confidentiality of legal advice. We also recognised that the advice related to an issue which was still live and that the legal issues had been considered by the Supreme Court, in a published judgment. On balance, we concluded that the public interest favoured withholding the information. 


  • Authorities - can you provide evidence that you've responded to a request?
    Where a requester hasn't received a response the authority believes it has sent, our investigation will consider the probability of whether it was sent. In Decision 004/2017 , we didn't really have anything more than an officer's personal recollection that the letter was posted, in circumstances where it usually would have been sent by email. In this case we didn't have enough evidence to conclude, on balance of probabilities, that the response had been sent.

Decisions issued:


  • Decision 001/2017 Lesley Scott and the Scottish Ministers
    The Ministers were asked for a copy of legal advice given by the Lord Advocate to the Scottish Government about the "named person" provisions in the Children and Young People (Scotland) Act. The Ministers refused to provide the information, arguing that it was legally privileged.

    The Commissioner agreed that the Ministers were entitled to withhold the information on this basis.


  •  Decision 004/2017 James W Hunter and the Scottish Ministers
    The Ministers were asked for information about Theresa May's meeting with Nicola Sturgeon in July 2016. We found that the Ministers failed to respond to the request and request for review within the FOI timescales.


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