Commissioner commits u-turn on legal professional privilege exemption

Not only has the Scottish Information Commissioner changed his mind about the information you are entitled to receive under Scottish Freedom of Information laws (you are now not entitled to receive a copy of actual documents you request, only the information that is contained within them - which opens up an opportunity for public authorities to mislead and misinform the public), but Mr Dunion has also committed a u-turn on legal professional privilege.

In his May/June newsletter (, Mr Dunion wrote that he has now changed his approach to the legal professional privilege exemption. Previously in cases where some aspects of legal advice had been disclosed into the public domain, the Commissioner had ruled that the advice in full should be disclosed. In a complete reversal to this, Mr Dunion "no longer considers that this rule will apply to most requests under FOISA" and, so, will not normally order a public authority to disclose legal advice in its entirety where it has already disclosed parts of that advice. This totally contradicts his findings in a 2008 case (002/2008 Ms D Cairns and the City of Edinburgh Council).

Does this now mean that any past cases where Dunion was of the decision that information was to be released on the basis of his erroneous application of the 'cherry picking' rule are all null and void because he applied the law incorrectly?

Let's hope there are more challenges to the Commissioner's rulings in future - remember his decision is not final (and on this evidence it certainly cannot be trusted).