The Scottish Executive was wrong to withhold sensitive documents regarding Scotland's legal profession, Scotland's highest civil court has ruled. The documents must now be released.
The information relates to plans to open up the courts so that non-lawyers could conduct litigation on behalf of members of the public. Though passed into law 17 years ago, the legislation has never been put into effect in Scotland.
William Alexander, who campaigns for legal services reform, requested access to ministerial correspondence relating to the issue but many documents were withheld from him by the Executive.
The Scottish Information Commissioner ruled that they must be released but the Executive appealed, and now the Court of Session has backed their release.
"I believe that the issues considered demonstrate a strong public interest in the release of information that would explain why sections 25 to 29 of the Miscellaneous Provisions Act have never been commenced," said the court's ruling. "The exemptions applied to such information must be considered in the context of the public interest in releasing the information."
The Executive had claimed that some classes of documents were eligible for automatic exemption from the Freedom of Information Act (FOIA). The Commissioner and the court rejected that argument, saying that the content of each document must be the basis of any decision.
The documents in question are said to include correspondence involving the late Donald Dewar, John Prescott and former Lord Chancellor, Lord Irvine.
A second appeal was also denied relating to the Executive's withholding of documents relating to a planning application in Ayr.
"The court has agreed that it was wrong of the Executive to conclude that it would be harmful to release information which it characterised as belonging to a class or type, e.g. advice to Ministers, without regard to the content of that information," said Kevin Dunion, the Scottish Information Commissioner. "I have consistently maintained this is not what Parliament intended and is not what the Freedom of Information (Scotland) Act allows."
“At the heart of these cases is whether the public is given access to information which allows them to understand why decisions have been arrived at," said Dunion. "With regard to the Law Reform Act, I took the view that a democratic society is entitled to expect that legislation passed by its elected representatives in Parliament will be brought into force unless there are good reasons for not doing so, and citizens are entitled to know those reasons unless there is a greater public interest in keeping them secret.”