I’m sorry, we can’t confirm or deny that (Part 2)

In November I wrote a short blog post about an application to the Scottish Information Commissioner that had caught my eye.  As far as I can determine that application is still being considered by the Office of the Scottish Information Commissioner.

My curiosity got the better of me and I wrote to the Scottish Government requesting the content of: (a) the initial request (b) the Scottish Government’s substantive response (c) the applicant’s request for a review and (d) the content of the Government’s response to that request for review.

What has come back is quite astonishing really.  The paper that the initial request was made on is that of what appears to be the office of a Scottish Labour Member of the European Parliament.  The request asks simply whether the advice was given to the Scottish Government and, if so, is the advice publically available.  No mention of FOISA in the request and does seem to me to be part of the normal communications between elected representatives and the Scottish Government, but such is life.

The Scottish Government then wrote back in August (the request having been received by them in  early June) refusing to confirm or deny whether the information exists in accordance with Section 18(1) of FOISA.  So, if the Government had considered this a request for information, which they did, there was already a significant technical breach as they had failed to comply with Section 10(1) of FOISA.  The Scottish Government used Section 18(1) on the grounds that to confirm or deny that the information exists would be contrary to the public interest and if it did exist, or was held, then it would be exempt from disclosure under sections 29(1)(a) or 30(c) of FOISA.

Unsurprisingly the MEP in question wrote back to the Scottish Government asking them to review this decision.  The MEP referred to the decision not to confirm or deny in their request for review as “perverse” in the “determination of where the public interest lies”.  A conclusion that I happen to agree with based on the correspondence I have seen.

The Scottish Government responded to the MEP in question upholding their original decision, but appear not to have even considered whether the decision to apply Section 18(1) was correct.  In any event, as we know, this has triggered an application to the Scottish Information Commissioner.

Having viewed the correspondence between the MEP and the Scottish Government I find it odd that the Scottish Government would find that it would not be in the public interest to even confirm or deny whether legal advice on the position of an independent Scotland in the EU.  I can understand why they would withhold the information if it did exist, but to not even confirm that it exists o not is perplexing in the extreme.

The First Minister and his colleagues on the SNP benches appear to have been quite vocal about the position of an independent Scotland in the EU.  I seem to recall that some have even said they have received legal advice on that very topic.  Now, that advice might have been sought by and paid for by the SNP as a political party and not the Scottish Government.  That would obviously result in the information not being held by the Scottish Government.  Although, that still doesn’t explain the use of Section 18(1) of FOISA.  There are conflicting messages coming from the Scottish Government and as we are heading towards the most significant decision we have ever had to take we cannot have politicians acting in this way.

I do not have the name of the MEP that made the request.  That is because having assumed that it was made by a member of the public excluded information as to the identity of the applicant from the scope of the request.  I had not for a moment considered that it might have been an elected representative who had made the request.

Obviously the Commissioner’s office is yet to determine this application, but I cannot see how the use of Section 18(1) can be upheld here.   It all seems just a little bit odd.  I’m sure we now all await this decision from OSIC with great interest.