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The Scottish Ministers v The Scottish Information Commissioner
Case: XA29/25
Thursday, 29 January 2026
10:30 to 13:00 then 14:00 until conclusion
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The Scottish Ministers v The Scottish Information Commissioner
XA29/25
Thursday 29 January 2026
10:30 to 13:00 then 14:00 until conclusion
First Division
[1] The Scottish Ministers appeal against Decision Notice 065/2025 of the Scottish Information Commissioner issued on 18 March 2025. The Scottish Information Commissioner’s decision arose from a request for information made by the applicant, Mr Benjamin Harrop, on 7 December 2023 to the Scottish Ministers requesting that they disclose the following information:
“all emails, text messages, WhatsApps, minutes and other forms of communications of/between Ministers, SPADs, civil servants and other Scottish Government officials regarding/referencing/discussing the court case known as The Scottish Ministers v The Scottish Information Commissioner (case reference number XA10/23) up to and including 6 December 2023.”
[2] The Scottish Ministers responded to the applicant’s request on 9 January 2024; however, they withheld information from his request on several different grounds. One of the exemptions relied upon by the Scottish Ministers was section 36(1) of the Freedom of Information (Scotland) Act 2002 (“FOISA”). The applicant sought a review of the Scottish Ministers’ decision; however, they maintained their position that the information which the applicant sought was subject to the protection afforded to legal professional privilege by section 36(1). Thereafter, the applicant made an application to the Commissioner to review whether the Scottish Ministers had complied with Part 1 of FOISA when determining his information request.
[3] To investigate whether the Scottish Ministers had complied with the applicant’s request, the Scottish Information Commissioner asked for disclosure of the information which had been withheld under section 36(1). The Scottish Ministers refused to do so. They considered that, even if the Scottish Information Commissioner had made a formal request for the withheld information by way of an information notice under section 50(1) of FOISA, they would be entitled to refuse to respond to such an information notice by virtue of section 50(5) of FOISA. As such, whether requested informally or formally, it would be improper to disclose the withheld information to the Scottish Information Commissioner in the circumstances. The Scottish Information Commissioner had to, as a result, consider whether disclosure ought to be made without access to the withheld information.
[4] The Scottish Information Commissioner accepted the withheld information fell within the scope of the exemption at section 36(1); however, that exemption was a qualified exemption. To qualify for the protection of section 36(1), the Scottish Ministers had to demonstrate that the public interest in disclosing the information was outweighed by that in maintaining the exemption, in accordance with section 2(1)(b) of FOISA. Based on the information available to him, the Scottish Information Commissioner decided the Scottish Ministers could not demonstrate that. Therefore, he ordered the Scottish Ministers to disclose the withheld information to the applicant.
[5] The Scottish Ministers appeal against that determination. They contend that the Scottish Information Commissioner:
i. misdirected himself as to the proper approach to be taken to the public interest test in maintaining legal professional privilege;
ii. mischaracterised the Scottish Ministers’ submissions to him on the public interest test;
iii. failed to give adequate reasons for his decision;
iv. misdirected himself in respect of the Scottish Ministers’ submissions to him in respect of section 50(5); and
v. had regard to an irrelevant factor when applying the public interest test.
[6] The First Division will hear this appeal on Thursday 29 January 2026 at 10.30am.