I’m sorry, we can’t confirm or deny that (Part 3)

The Scottish Information Commissioner has published her decision on an application under s.47(1) of FOISA by Catherine Stihler MEP.  Rosemary Agnew, the Commissioner, decided that the Scottish Ministers were wrong to refuse to confirm or deny whether they held legal advice on the position an independent Scotland would be in with regards to EU Membership.

I have written about this request before and sought from the Ministers, under FOISA, the correspondence between the applicant and the Ministers on this request prior to it going to the Commissioner (i.e. the request and response as well as the request for review and the Minister’s response).

Section 18 of FOISA provides that a public authority can refuse to confirm or deny whether it holds information sought in an FOI request where the public authority is of the view that the public interest is best served by this level of secrecy.  It has previously been successfully deployed, for example, by police forces to not confirm whether it holds information in relation to a particular incident that may or may not be a crime and the Scottish Ministers in relation to the honours process.

In this latest decision, the Commissioner agreed that two exemptions would apply to the information if it were held.  The Commissioner was satisfied that s.29(1)(a) of FOISA applied and also that s.30(c) of FOISA applied.  However, this is not the end of the story.   Both of these exemptions are subject to the public interest and the Commissioner had to then consider where the public interest would lie in each of these cases.  The Commissioner found that the Ministers could provide a refusal notice in terms of s.16 because the public interest would likely favour maintaining the exemptions.

Ordinarily that would be the end of the matter.  However, s.18 adds a further public interest test into the equation. This is the public interest in refusing to confirm or deny whether the information is held by the Ministers.  At paragraph 52 of her decision notice, the Commissioner states:

“In this case, whilst the Commissioner has concluded that, if the advice existed and was held by the Ministers, they would have been entitled to issue a refusal notice under section 16(1), 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.”

At paragraph 53 the Commissioner continues by stating that:

“Ms Stihler’s request was made at an early stage in the Government’s development of its policy in relation to Scotland’s potential membership of the EU. Nonetheless, the Commissioner considers there is a strong public interest in allowing the public to understand the process by which this policy would be formulated.”

The decision notice concludes by finding that the Commissioner is “not satisfied in this case that it would be contrary to the public interest for the Ministers to reveal whether the legal advice requested by Ms Stihler exists or is held by them”

This decision notice is unlikely to result in the Minister’s advice on the matter actually being published.  It is clear that the Commissioner is likely to consider it exempt from disclosure.  However, what it does do is force the Ministers to confirm whether they have actually sought proper legal advice on the subject or whether they are, as some suggest, simply making it up as they go along.

This decision is vitally important because the Scottish Government had tried to put a cloak of secrecy around what information they had which has developed their policy position on Scotland’s membership of the EU.  If it transpires that a Section 17 notice (information not held) is issued rather than a notice under s.16 (a refusal notice) it could be politically embarrassing for the SNP and call into question their credibility on the subject.

However, I find it highly unlikely that a s.17 notice will be issued.  I do not think that the Ministers have been arguing their position without having any legal advice.  Whether that advice actually supports their position or not is a matter that we are unlikely to ever know.  Of course, this decision notice does not preclude the Commissioner from deciding in the future that the information should be disclosed.  The Commissioner’s office will never have seen any advice that the Ministers hold because she was not being asked to decide on its disclosure her, only whether the Ministers were right to refuse to confirm or deny.  Once Ms Stihler has received the response ordered by the Commissioner she could seek a further internal review of a refusal to disclose and ultimately apply to the Commissioner again under s.47(1).  Once the Commissioner sees the actual information she might change her mind as to where the public interest actually lies.  The indications on that question in this decision notice are only indications.

This decision notice brings hope to an application that I currently have with the Commissioner which seeks a list of those who have provided legal advice to the Scottish Ministers on the competence of the Scottish Parliament to hold a referendum on independence within the current devolution settlement.  As with Ms Stihler’s request, the Ministers have refused to confirm or deny whether the information is held or not.  Currently, the Ministers are being asked for further submissions (having already provided two sets of submissions to the Commissioner) on their reliance on s.18.

Of course, the Ministers could appeal the Commissioner’s decision to the Court of Session arguing that the Commissioner has erred in law in her decision that the Ministers were not entitled to rely on s.18 to refuse to confirm or deny whether information falling in the scope of Ms Stihler’s request.  The Ministers have 28 days from 6 July 2012 to decide whether to appeal or not and have until 21 August 2012 to comply with the decision if they decide not to appeal.

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