The Scottish Information Commissioner has upheld the Scottish Government’s decision to withhold legal advice and draft internal material relating to meetings with representatives of the Israeli Government, concluding that exemptions for confidentiality and the effective conduct of public affairs were correctly applied.
In Decision Notice 018/2026, issued on 9 February 2026, the Commissioner found that Ministers were entitled to rely on section 36(1) (confidentiality / legal professional privilege) and section 30(c) (substantial prejudice to the effective conduct of public affairs) of the Freedom of Information (Scotland) Act 2002 (FOISA) to withhold limited information contained in two internal email exchanges.
The request, submitted in August 2024, sought “any correspondence since January 2024 relating to meetings with representatives of the Israeli embassy in the UK or… other representatives of the Israeli government” (Decision Notice, para 1).
The Scottish Government initially withheld all information under section 32(1)(a) (international relations). Following a review and a previous appeal (Decision 114/2025), Ministers disclosed some material but continued to withhold five documents in whole or in part under a range of exemptions, including sections 30(c) and 36(1).
The applicant then appealed to the Commissioner, challenging only the use of these two exemptions.
The Commissioner accepted that all of the material withheld under section 36(1) consisted of confidential communications between in‑house legal advisers and officials, made for the “principal or dominant purpose of giving or seeking legal advice” (para 23).
He found that the information “meets the conditions for legal advice privilege to apply” and that confidentiality had not been waived (paras 25–27).
On the public interest test, the Commissioner acknowledged the applicant’s argument that disclosure would shed light on whether officials had considered alternative positions on relations with Israel. However, he concluded that none of the recognised circumstances for overriding privilege - such as evidence of wrongdoing or misrepresentation - were present (para 42).
He emphasised the “*strong inherent public interest… in maintaining the right to confidentiality of communications between legal adviser and client*” (para 39), and found that Ministers were entitled to maintain the exemption.
Draft internal material protected under section 30(c)
The remaining withheld information comprised four short paragraphs of draft internal commentary on the Government’s position.
The Commissioner accepted that these were early-stage deliberations on a “sensitive matter” - the Scottish Government’s relationship with Israel (para 58) - and that disclosure would “substantially inhibit future debate” and risk “uninformed and poorly thought‑out decisions" (paras 58–59).
He agreed that officials required a private space to refine draft statements before reaching a settled view, particularly where public statements could have diplomatic implications.
On the public interest test, he concluded that while disclosure might be of interest to the applicant, this did not equate to serving the public interest. The stronger public interest lay in “*maintaining the private space which allows the Authority to reach a settled position*” (para 69).
The Commissioner found that the Scottish Ministers had complied with Part 1 of FOISA in relation to the matters under investigation and were entitled to withhold the disputed information.
Both parties have 42 days to appeal to the Court of Session on a point of law.
