I was having a look at the list of current applications currently before the Scottish Information Commissioner for a decision pursuant to Section 47(1) of the Freedom of Information (Scotland) Act 2002. One application in particular caught my attention, probably due to its constitutional significance.
Application 201101968 concerns the Scottish Government’s use of Section 18 of the Freedom of Information (Scotland) Act 2002 in relation to a request for information seeking independent legal advice held by the Scottish Ministers on an independent Scotland’s membership of the EU. All I or any other member of the public has to go on at this stage is simply the information contained within the list of current applications (more could be made public by way of a request for information to the Office of the Scottish Information Commissioner), but it will be interesting to read the Commissioner’s Decision Notice.
Section 1(1) of the Freedom of Information (Scotland) Act 2002 requires public authorities to confirm in writing to an applicant for information whether the authority holds any information falling within the scope of the applicant’s request and to communicate any information not exempt under the Act to the applicant. However, Section 18 provides that a public authority can refuse to confirm or deny whether it holds the information sought where the information would be exempt under the Act and to confirm or deny its existence would be contrary to the public interest.
It seems odd that the Scottish Ministers feel that it is contrary to the public interest to confirm or deny whether it holds such information (it’s almost guaranteed to be exempt as it comprises legal advice which is ordinarily exempt from disclosure). In fact it would be rather worrying if the Scottish Ministers had not obtained such legal advice.
Of course, it is hard to make any judgment on the situation without the benefit of having seen the actual request submitted and the arguments advanced by the Scottish Ministers in support of utilising Section 18 of the Act. Why would the Ministers feel that the public interest lies in not even confirming whether it has sought legal advice on this matter? Given the Scottish Minister’s preferred option of an independent Scotland in the European Union and its frequent and continued assertions as to Scotland’s legal status over this matter (including that of joining the Euro) some would say that it indicates the Ministers have sought legal advice. Whether any advice they may or may not have sought supports their position is something that the public are never likely to know unless the Ministers decide to publish it (or the Scottish Information commissioner takes a very rare decision to order its release in response to a FOI request.
I will certainly be watching this request with great interest and look forward to reading the Commissioner’s Decision Notice when it is eventually released (assuming some compromise isn’t reached between the applicant and the Ministers during the investigation in which case a Decision Notice is unlikely). Interesting times indeed.