THE Scottish Government has been rebuked by a transparency watchdog for fighting a Freedom of Information (FOI) request relating to a probe into whether Nicola Sturgeon broke the ministerial code.
The Scottish Information Commissioner has criticised ministers for trying to block the release of legal advice they received before appealing a decision made by the commissioner. That decision required them to publish evidence relating to the James Hamilton report into the former first minister.
In a letter to the Scottish Government’s top civil servant, John Paul Marks, commissioner David Hamilton expressed his “disappointment” at the course of action taken by ministers.
The commissioner, responsible for upholding the principles of the FOI Act, said the legal advice given to ministers and eventually published showed that the Scottish Government were told their chances of winning the case were “substantially diminished”.
He said that the Scottish Government’s attempts to delay the release of the information were “deliberate” and served to “frustrate the rights of the requester”.
The Scottish Government ought to have acted in a way that was “in line with the spirit of the legislation”, Hamilton added.
The long-running saga centres on two FOI battles the Scottish Government has fought over the Hamilton report into whether Sturgeon broke the ministerial code while giving evidence to a Holyrood probe into allegations against Alex Salmond.
She was ultimately cleared of breaching the code.
The first FOI request asked the Scottish Government to release all “written evidence” submitted to the inquiry, which the Scottish Government tried to prevent, saying the information was “not held” and that Hamilton was exempt from the rules of information disclosure because he was independent of the government.
This was appealed by the Scottish Information Commissioner which said the information was in fact held by the Government and that the information should be released.
The Scottish Government complied partially and published “links to information already available” but kept secret the remaining information “on a number of grounds” and this request remains live under an appeal to the commissioner’s office.
But as well as not fully complying with the commissioner’s decision, the Scottish Government also attempted to appeal that decision – a fight it has now emerged it was likely to lose.
The Scottish Government also tried to refuse another FOI request asking for the legal advice it received before trying to appeal the decision.
This was unsuccessful and the Government had to release the information.
In his letter to Marks, Hamilton said: “The ministers’ right of appeal to the Court of Session is a fundamental aspect of a democratic society.
“But where, as in this case, the chances of success are suitably diminished, it could be argued that any additional delay was deliberate, to frustrate the rights of the requester.”
Hamilton also criticised the way the Scottish Government had commented publicly on the case, saying it had sought to give the incorrect impression that it had a “stateable case” throughout the time of the appeal.
He said: “As regulator for FOI, 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.
“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.”
Scottish Labour’s business manager Martin Whitfield said the commissioner’s comments were “extraordinary”.
He added: “These utterly scathing comments lay bare how dishonest and dysfunctional this SNP Government has been.
“It’s clear there is a corrosive culture of secrecy and cover-up at the heart of the SNP.
“The SNP Government has wasted time and taxpayer money trying to keep the truth under wraps and we deserve to know why.”
A Scottish Government spokesperson said: “The substantive points in the commissioner’s letter were fully addressed in a statement to the Scottish Parliament on October 29, 2024.”
John Swinney told MSPs in that statement that the Lord Advocate, the most senior legal adviser to Scottish ministers, said the Scottish Government’s case had “reasonable prospects of success” and there were arguments that “should be tested” in court.
He added that the Scottish Government’s fundamental position – that legal advice to ministers should be kept confidential – was conventional and it was the commissioner’s position to the contrary that was unusual.
