The independence referendum coverage has been polarised on one issue lately: the position of an independent Scotland in the European Union. This issue really came to the forefront of the political discourse following the Deputy First Minister’s statement last week which confirmed that the Scottish Government had not yet commissioned detailed advice on this question. This came in the context of a Freedom of Information request made by Catherine Stihler MEP of the Labour Party.
The debate that has ensued following the Deputy First Minister’s revelations and ignores the finer details of the Freedom of Information request and FOI law. Ms Stihler had sought from the Scottish Ministers the legal advice they had received on the position of an independent Scotland in the European Union. The Scottish Ministers had refused to confirm or deny the existence of the information pursuant to Section 18 of the Freedom of Information (Scotland) Act 2002 (FOISA). To cut a very long story short Ms Stihler eventually appealed to the Scottish Information Commissioner who found that that the Ministers were not entitled to rely on Section 18 of the FOISA. The Scottish Ministers initially appealed this decision to the Court of Session, but later dropped that appeal.
When it was revealed that the Ministers had not sought advice there were instant accusations of the Scottish Ministers wasting taxpayers’ money. Those accusations related to the fact that the Scottish Ministers had went to court to protect advice that didn’t even exist. This entirely ignores the purpose of Section 18 of the FOISA.
While it was frustrating that the Scottish Ministers decided to appeal the decision and while I personally considered the Commissioner’s reasoning in her decision to be correct and flawless, it was the right of the Scottish Ministers to appeal the decision. The fact that the information did not exist is irrelevant. That comes from the wording and purpose of Section 18 of FOISA.
Section 18 of FOISA provides:
(1)Where, if information existed and was held by a Scottish public authority, the authority could give a refusal notice under section 16(1) on the basis that the information was exempt information by virtue of any of sections 28 to 35, 39(1) or 41 but the authority considers that to reveal whether the information exists or is so held would be contrary to the public interest, it may (whether or not the information does exist and is held by it) give the applicant a refusal notice by virtue of this section.
(2)Neither paragraph (a) of subsection (1) of section 16 nor subsection (2) of that section applies as respects a refusal notice given by virtue of this section.
What does this mean? Well, put simply it means that where a public authority believes that to reveal whether particular information is held (or not held) is contrary to the public interest it can issue a refusal notice under Section 18. The public authority is not required to comply with the ordinary requirements of FOISA to confirm whether the information is held (and either release it or issue a refusal notice under Section 16 of FOISA) or whether it is not held (and issue a refusal notice under Section 17 of FOISA). For section 18 to apply the public authority must be satisfied that if the information did exist that it would be exempt under certain exemptions of FOISA.
Section 18 has successfully been deployed, for example, where a police force was asked for information about a particular investigation. It was found to be contrary to the public interest to reveal whether the information was held or not. It was also successfully deployed by the Scottish Ministers in relation to an information request relating to the honours process.
There is very little in the way of case law from the courts in relation to the FOISA. More than 1,500 decisions have been issued by the Office of the Scottish Information Commissioner since FOISA entered into force in 2005, but there are only about half a dozen reported appeals to the courts. None of these have been in relation to Section 18. In terms of the operation of FOISA it would have been particularly helpful to have had a considered judgment from the Court of Session (perhaps even the United Kingdom Supreme Court if it had gone that far) on the application of Section 18, especially given the nature of Section 18. Undoubtedly the Scottish Ministers would have raised the Ministerial Code issue and it would have been very helpful to have had judicial consideration of the relationship between the Ministerial Code and FOISA.
On the issue of legal advice and FOISA, it is generally accepted that there is a strong public interest in public authorities being able to obtain legal advice and for that advice to remain protected. The public interest in its release has to be particularly strong before it will be released. There are few examples of the Scottish Information Commissioner or the UK Information Commissioner ordering the release of legal advice. Where the public interest rested in respect of legal advice must, as with all FOI requests, be judged on a case-by-case basis as request are received. Advice that has previously been protected under FOISA might later be released as a result of a subsequent request for information if the public interest balance shifts.
Section 18 is an important exemption; sometimes to reveal whether information exists or not is simply not in the public interest. There has to be an exemption for that situation when it arises (although it should arise rarely). Public authorities must be free to appeal a commissioner’s decision regardless of whether the information exists or not. I am actually disappointed that this case never actually made it to court because we are lacking vital judicial guidance on both the application of Section 18 of FOISA and on the relationship between FOISA and the Ministerial Code. By all means attack the SNP for appearing to make assertions which were not based on any legal advice, but don’t attack them for exercising their statutory right to appeal a decision of the Commissioner to the Court of Session. That does not help the cause of FOI one bit.
prout de jure 
That’s a good point, Alistair. While it may seem strange to use an exemption for information that may not exist, it actually makes perfect sense if you think about it. When I worked in the FOI field in a Scottish university I always made the point that we should apply Neither Confirm Nor Deny to certain categories even if we didn’t have the information. If we didn’t use it when we had nothing, but did when we had, by using it we would effectively be revealing that information – which defeats the purpose of the exemption.
Although persuasively put, I’m afraid I disagree. On an issue of fundamental public importance, the convention that Law Officers advice is not disclosed becomes an unnecessary barrier to effective scrutiny of the Executive which does not serve the public interest.
As I look at this issue, I become increasingly confused about why the convention exists now and why no-one in the present debate about EU membership advice challenges it: Professor Edwards’ book on Law Officers of the Crown traces the convention back to Palmerston in 1865. It seems unusual that a rule of such antiquity escapes public debate.
The argument goes that confidentiality must be maintained to ensure candour between clients and their lawyers, but this has less impact in a context where the Law Officers can expect full disclosure of the issues from their fellow Ministers, and the public can expect most contested public law questions to end up in the courts with the rise of JR. In any event, there have been numerous occasions when the convention has been breached without incident.
As for case-law, we may not have much from Scotland, and that which we do have can seem odd at times: witness the case of Dundee and Glasgow in the Extra Division. In any event, we know from the Turco case in the CJEU that the public interest can quite easily swing in favour of transparency on legal advice.