The Scottish Government has come under fire from Scotland’s Information Commissioner for alleged misrepresentations during a protracted Freedom of Information (FOI) appeal.
The controversy stems from a request for information linked to James Hamilton KC’s investigation into Nicola Sturgeon’s conduct during the Alex Salmond inquiry.
After initially refusing the request, the Government faced an appeal that led to the Information Commissioner ordering the release of the documents.
The Government subsequently challenged this ruling in the Court of Session but lost the case. A further FOI request sought legal advice surrounding the decision to appeal, which the Commissioner again instructed the Government to disclose.
On 26 October, the Scottish Government released the legal advice, revealing that, as of May 2023, counsel had warned the court was “more likely than not to refuse the appeal.”
Despite this, the Government’s legal department maintained its position, arguing there were “reasonable arguments” to continue.
Information Commissioner David Hamilton has criticised the Government’s handling of the case, particularly the media statement accompanying the release of over 100 pages of documents.
In a letter to Scotland’s top civil servant, John-Paul Marks, Hamilton stated, “The statement suggested that the ministers had a stateable case throughout the timeline of appeal. As highlighted above, this is not a true or transparent reflection of advice received.”
The Commissioner also expressed disappointment over the Government’s decision to proceed with the appeal, ignoring legal warnings, which resulted in significant costs and resource impacts for both parties.
In its October statement, the Scottish Government defended its actions, claiming, “The decision to comply with the commissioner’s decision and release the legal advice has been taken after careful consideration and does not set any legal precedent.”
The statement also highlighted that the decision to appeal had been made following discussions with the Lord Advocate, who agreed there were proper grounds for challenging the Commissioner’s ruling.
The Government argued the case revolved around a “sharp and important question of statutory interpretation,” a claim echoed in a statement from First Minister John Swinney to Holyrood on 29 October.
Addressing the issue in Parliament, Swinney said, “Ministers were presented with legal advice that supported a court challenge and the court took the view that the matter was a ‘sharp issue of statutory interpretation.”
Despite the Government’s defence, Hamilton remains critical, particularly of the tone and content of the Government’s public statements. He described the media statement as an attempt to misrepresent the facts and mislead the public regarding the legal advice received.
A Scottish Government spokesperson said the Commissioner’s concerns had been addressed in Swinney’s October statement, maintaining that ministers acted rationally and in good faith.
