The Inner House of the Court of Session last week issued a judgment on the circumstances in which the public interest will override legal professional privilege (“LPP” or “privilege”) when privileged material is the subject of a freedom of information request. The judgment confirms that the bar for reaching such a conclusion is very high. This will give comfort to public authorities who are keen to preserve the confidentiality of their legal advice.
LPP applies to confidential communications between a lawyer and a client for the purposes of seeking or giving legal advice. Legal advice from non-lawyers does not attract LPP. LPP also applies to communications and other information created (by lawyers or non-lawyers) for the purpose of anticipated or actual litigation.
If information is subject to LPP then it will generally be possible to resist any attempt to require its disclosure, including from courts, the police and regulators. In particular, information being privileged is a basis for public authorities to refuse to disclose it in response to a request made under the Freedom of Information (Scotland) Act 2002 (“FOISA”).
Section 36(1) of FOISA exempts from disclosure “information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings is exempt information.” LPP is not the only basis on which one can make a claim to “confidentiality of communications” in Scots law, but it is almost certainly the most common. The exemption is not absolute, however: privileged material must nevertheless be disclose if “in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption” (section 2(1)(b) of FOISA).
The Inner House’s judgment, in the case of The Scottish Ministers v the Scottish Information Commissioner [2026] CSIH 15, is on that very question. The Inner House emphasised that LPP is a ‘fundamental human right’ on which the proper administration of justice depends, but noted that FOI laws have “innovated” on the common law position – i.e. they are the sole exception to the usual rule that (as Lord Malcolm put it) “[n]o judge has the power to invoke the public interest in order to override the confidentiality of information subject to LPP”. The Court confirmed that the ‘bar’ ordering the disclosure of privileged material based on the public interest test is very high and provided useful guidance on how public authorities should consider this question in responding to FOISA requests engaging section 36(1).
Background
In very brief summary, the case concerned a FOISA request for material relating to a previous litigation between the Scottish Ministers and the Scottish Information Commissioner (the “Commissioner”). That litigation in turn concerned an earlier decision by the Commissioner that the Scottish Ministers “held” (for the purposes of s.3(2) of FOISA) information gathered during the investigation by James Hamilton KC, the independent adviser on the Scottish Ministerial Code, as to whether the then-First Minister had breached the Code. That decision had the result that that information was susceptible to FOISA. The Scottish Ministers appealed, but the Inner House sided with the Commissioner in late 2023. The FOISA request for material relating to the appeal followed shortly after that decision.
The Ministers responded to that subsequent request by disclosing some of the information relating to that appeal, but withheld the rest on the basis that it was privileged. The Commissioner reviewed that refusal and ordered disclosure of the information notwithstanding its privileged status, concluding that the public interest in transparency outweighed the public interest in maintaining the exemption.
The Commissioner accepted that the material withheld by the Scottish Ministers was subject to LPP and so was covered by section 36(1) of FOISA – though interestingly he could not see the material himself, as section 50(5) of FOISA allows authorities to decline to provide information to the Commissioner if (paraphrasing) it is legal advice about the authority’s FOISA obligations or is a communication made for the purpose of proceedings under FOISA. However, the Commissioner then held that the public interest in disclosure was of sufficient substance to outweigh the public interest in maintaining the exemption. The Court records that the Commissioner noted in particular that the material subject to LPP had been described by the Government as “standard official level correspondence of a type expected when preparing for litigation”, and that the litigation had been concluded in his favour and so the material would have no practical value for him.
The Ministers appealed under section 56 of FOISA, arguing that the Commissioner had failed to give adequate weight to the importance of LPP in carrying out the public interest balancing exercise. Ultimately the Inner House agreed with that argument.
Public Interest Test
The Court reviewed the historic and constitutional status of LPP. It noted that for centuries the common law has guaranteed the confidentiality of communications between lawyers and their clients, recognising that full and candid disclosure between them is essential for the provision of sound legal advice. However, the Court also recognised that, if only for the purposes of FOISA given the qualified nature of s.36(1), “there will be occasions when any harm risked by disclosure will not outweigh the public interest in publication of information held by a public authority”.
Although FOISA brings privileged information within its scope via a qualified exemption, meaning it is subject to the public interest test, the Court stressed that the legislature had not intended to dilute the “fundamental importance” of the considerations underpinning LPP. The Court noted that “[w]hen carrying out the balancing exercise inherent in the public interest test it is important that the harm to the common good risked by disclosure of LPP information is properly understood and weighed.”
Key to the Court’s reasoning was its assessment that the Commissioner gave insufficient weight to LPP in considering the public interest exemption. The Ministers had argued that only “exceptionally compelling” reasons could justify ordering disclosure of privileged material. While the Court did not formally adopt that wording, it effectively endorsed the argument: the bar for disclosure of LPP on public interest grounds is very high. The Court was clear that, in common law, no judge is entitled to invoke the public interest to override LPP. While this cannot hold for FOISA given the need to apply the statutory public interest test, the Court expressly endorsed the statement in Philip Coppel KC’s book ‘Information Rights’: “Some clear, compelling and specific justification for disclosure must be shown so as to override the obvious interest in legal professional privilege”.
The lesson for decision‑makers considering FOI requests for privileged material (or indeed for requesters seeking to obtain it) is the importance of recognising quite how significant is the public interest in maintaining privilege. A statutory scheme such as FOISA, which provides for a public interest override to a protection that is otherwise absolute, must be interpreted strictly and cautiously. The Court also took the opportunity to note the long-standing distinction between something that is in the public interest and something that is of interest to the public, another consideration that should always be kept in mind.
Conclusion
The Inner House judgment is a significant restatement of the importance of LPP and the weight to be given to it under FOISA. That significance is not limited to Scotland – section 42(1) of the Freedom of Information Act 2000 is in similar terms to section 36 of FOISA (including being qualified by the public interest test under that Act), while the Inner House is the most senior court in the UK to weigh in on this question. Public authorities throughout the UK can therefore take comfort from the Court’s confirmation that only the clearest and most compelling public interest factors could justify disclosure of privileged material.
This judgment will undoubtedly shape future FOI decision‑making and underscores the importance of taking a careful approach to both sides of the public interest balancing test.
If you would like to discuss how this judgment may affect you, including your organisation’s FOI processes or your approach to seeking / handling legal advice and other privileged material, please get in touch with Charles Livingstone, Caoimhe Hunter Blair or your usual Brodies contact.
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