Information Commissioner's Office

Scotland Office

4 April 2008, Local government (District council)

The complainant made two requests to the Office of the Advocate General for Scotland (part of the Scotland Office) for legal advice the Advocate General and his office may have produced in relation to legal proceedings which he was a party to. The public authority refused to confirm or deny whether it held the legal advice specified in the first request under section 42 of the Act. It refused to confirm or deny whether it held the legal advice specified in the second request under sections 35 and 42 of the Act. During the course of the investigation the public authority informed the Commissioner that, in respect of the first request, it was no longer refusing to confirm or deny whether it held the legal advice. It confirmed that it held the advice but refused to disclose the content under section 42 of the Act. In respect of the second request it informed the Commissioner that it no longer wished to rely on section 42 but was continuing to rely on section 35 in support of its decision to refuse to confirm or deny. Having investigated the complaint the Commissioner has found that the information specified in the first request was exempt under section 42 of the Act and the public interest favoured maintaining the exemption but that the public authority breached section (1)(1)(a) of the Act by failing to confirm or deny to the complainant if the information was held. In respect of the second request the Commissioner found that section 35 was engaged and the public interest favoured maintaining the exclusion of the duty to confirm or deny.

FOI 35: Not upheld