“it is in the public interest to know the type of information that the Ministers were taking into account”

Here’s a little referendum related snippet from Scotland.  The Scottish government is reportedly “surprised” at a recent ruling by the country’s Freedom of Information Commissioner.

In response to a request by Labour MEP Catherine Stihler on 30 May last year, the Scottish government had refused to confirm or deny whether it had received legal advice on the status of an independent Scotland within the EU.  They had cited section 18(1) of the FOI Act.  As the Information Commissioner’s press statement notes

•  This allows authorities to refuse to reveal whether information exists or is held by them in circumstances where, if it did exist, it would be exempt under any of a number of specified exemptions, and where the authority considers that to reveal whether it exists or is held would be contrary to the public interest. The Ministers informed Ms Stihler that the exemptions under section 29(1)(a) and section 30(c) of the FOI Act would apply, if the advice existed and was held.
• Section 29(1)(a) exempts information that relates to the formulation or development of government policy, while 30(c) exempts information where release would prejudice substantially the effective conduct of public affairs.

After a review in September by the Ministers upheld their original decision in full, Ms Stihler appealed to the Information Commissioner.  The Commissioner’s decision was issued on 6 July 2012.

From the Information Commissioner’s press statement

In her consideration of the case, Scottish Information Commissioner Rosemary Agnew concluded that, if legal advice on this matter was held by Ministers, it would, at the time of the request, have been exempt from release under two of the Scottish FOI Act’s exemptions. However, she also found that to reveal whether or not the information was held would not have been contrary to the public interest.

In considering the public interest, the Commissioner’s decision states:

“In the Commissioner’s view, the role of [the FOI Act] is important not only in ensuring transparency in information held by public authorities, but also in enabling transparency in information about process…In this case, 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.” [added emphasis throughout]

The Commissioner requires the Ministers to reveal to the requester whether or not the legal advice existed or was held at the time of the request by 21 August 2012.

The BBC report has a response from a spokesman for the Scottish Government

A spokesman for the Scottish government said it had been “surprised” by the commissioner’s decision.

He added: “It is the longstanding and usual practice of the Scottish government to neither confirm or deny the existence or the content of legal advice.

“The approach we have taken on this issue is consistent with the UK government position in a similar case they dealt with under equivalent legislation. We therefore intend to appeal and contest the decision.”

The BBC report also quotes from the Information Commissioner’s decision,

Ms Agnew said an independent Scotland’s position in the EU “could have a bearing on how people vote in the referendum”.

But here’s a longer extract from the decision  [added emphasis throughout]

39.The Commissioner is aware that the Scottish Government is committed to a referendum on the matter of Scottish independence. In her view, the question of whether independence will result in Scotland automatically remaining a member of the EU, or automatically being excluded and having to apply for membership, could have a bearing on how people vote in the referendum, depending on how they view the consequences of either of these outcomes.

40.In the Commissioner’s view, the disclosure of legal advice on this matter could, if it existed and was held by the Ministers, inform the public in making their choice in a referendum, and in participating in the referendum debate.

41.However, the Commissioner is required to consider the position as at September 2011, i.e. at the time the Ministers carried out a review of Ms Stihler’s request. At that time, no exact date had yet been set for the referendum, although it had been suggested by the First Minister during the election campaign that the preferred option would be for the referendum to be held in the second half of the new Parliament.

42.The Commissioner accepts the Ministers’ position that any such legal advice would concern a topic that would be in the early stages of policy development and would not represent a finalised or settled position. In the Commissioner’s view, such advice, should it exist and be held by them, would be utilised for the purposes of considering options and discussing possible scenarios with a view to developing an informed position.

43.In the Commissioner’s view, it is in the public interest that all options can be explored and considered candidly by the Ministers and that space should be afforded for doing so before reaching a settled public view. This would enable the Ministers to consider a range of options, some of which could be rejected or further developed in the future. In particular, the Commissioner considers it is in the public interest that Ministers should be able to develop and formulate policies fully, without being drawn into a public debate on matters that may never form part of their finalised policy position. In the Commissioner’s view, this does not preclude the public from engaging with and influencing future policy development and the debate concerning the future constitutional position of Scotland.

44.Additionally, the Commissioner recognises that, in September 2011, the independence referendum was still some years away. In her view, the urgency of the need to understand the consequences of any legal advice obtained by the Ministers would be considerably less at that time (or even now) than it would be as the referendum approached.

45.Having considered all of the representations made by Ms Stihler and the Ministers, the Commissioner has concluded, taking into account the timing of the Ministers’ review and the indicative timing of the referendum, that, at the relevant time, the public interest in disclosure of the advice (should it exist or be held by the Ministers) would have been outweighed by the public interest in maintaining the exemptions in both sections 29(1)(a) and 30(c) of FOISA.

46.In summary, the Commissioner is satisfied that the information under consideration, if it existed and was held by the Ministers, would fall within the scope of those exemptions. The Commissioner has also concluded that the public interest in disclosure of any such information would be outweighed by that in maintaining the exemptions and that, consequently, the Ministers would be entitled to withhold the information should it exist and be held by them.

47.Consequently, the Commissioner is satisfied, on the facts presented by the Ministers in this case, that the Ministers could give a refusal notice under section 16(1) of FOISA on the basis that the public interest in disclosure of the legal advice (if it existed and were held) would not be outweighed by the public interest in maintaining one or more of the exemptions in sections 29(1)(a) and 30(c) for the reasons already set out in paragraphs 37 to 46 above.