Scottish Government accused of 'misrepresentations' over Freedom of Information appeal case

Scotland’s Information Commissioner has accused the Government of misrepresentations in dealing with a long-running freedom of information appeal.

An initial request was made for information relating to the probe of James Hamilton KC, the former independent adviser on the ministerial code, into the conduct of Nicola Sturgeon during the Alex Salmond inquiry.

The request was denied before being appealed, with the Information Commissioner ordering the Government to release the documents.

The Government appealed the decision to the Court of Session, eventually losing the case.

But another freedom of information (FOI) request was submitted seeking the legal advice surrounding the decision to appeal and the commissioner again ordered the Government to publish the documents.

On Saturday October 26, the Government published the advice – given in May 2023 – which showed they continued with the case despite legal counsel saying the court was “more likely than not to refuse the appeal”.

Despite the advice, the Scottish Government’s legal department advised that its position on the appeal continuing was “unchanged” and there remained “reasonable arguments to make in support of ministers’ position”.

In a new letter, the Information Commissioner, David Hamilton, has criticised the Government’s handling of the case, with a focus on the media statement released alongside the 100 pages of documents.

“As regulator for freedom of information, I was deeply disappointed in the tone of the media statement accompanying the disclosure, which, in my view, misrepresented the facts as disclosed in the information,” he wrote to the country’s top civil servant, John-Paul Marks.

“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.

“Ministers’ chances of success diminished considerably over time and attempts to present this otherwise are not what I would expect from a public authority.”

The statement released by the Government in October said: “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 material shows Scottish ministers took decisions based on appropriate analysis of the legal considerations.

“This included discussions with the Lord Advocate, who was content that there were proper grounds for appealing and who agreed with ministers that the decision should be appealed.

“This was a complex and intricate point of FOI law, which the Court of Session’s judgment recognised as addressing a sharp and important question of statutory interpretation.

“The material reflects the thorough deliberation the Scottish Government gave to this matter.”

The letter also hit out over the decision to continue with the case despite warnings from counsel.

“It is clearly disappointing that despite this clear advice, the ministers continued with the hearing on December 6 2023, with all the associated significant resource and cost impact for both your organisation and mine,” he wrote.

A spokesman for the Scottish Government said the points raised by the commissioner had been addressed in an October 29 statement to Holyrood by First Minister John Swinney.

In that statement, the First Minister 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’.

“In short, it was a perfectly rational decision by ministers to go to court.

“So, the original accusation that has been made in this case, that ministers acted against legal advice in deciding to challenge in court the original decision of the Information Commissioner, has been disproved by the publication of the legal advice at the weekend.”