SCOTTISH GOVERNMENT MUST HAND OVER STURGEON INFORMATION
Scottish Information Commissioner David Hamilton has issued a decision which requires the Scottish Government to disclose some of the written evidence supplied to James Hamilton as part of his investigation into whether former First Minister Nicola Sturgeon had breached the Ministerial Code.
The Commissioner’s decision – Decision 279/2025 – is the latest in a series of rulings where his office has considered this matter.
Previously, the Scottish Government had claimed that it didn’t hold the requested information but, in December 2023, the Court of Session agreed with the Commissioner that the information was in fact held, and that the Scottish Government should therefore issue a response.
The decision comes after the requester appealed the Scottish Government’s subsequent response to the Commissioner, on the basis that much of the information was exempted from disclosure.
In his decision, the Commissioner finds that, while some information was appropriately withheld, other information should be disclosed to the requester.
In particular, the Commissioner finds that the Scottish Government had incorrectly applied the exemption which protects information where disclosure would harm the effective conduct of public affairs to all the withheld information, finding that disclosure would not substantially harm the Scottish Government’s ability to carry out future investigations of this type.
The Commissioner also meticulously reviewed the redactions applied by Scottish Government to information which was withheld to avoid breaching court orders. Following this, he instructed the release of further material.
Similarly, The Commissioner found that, while some information had been appropriately withheld because it related to confidential legal communications, other information where this exemption had been applied should be disclosed.
In some cases, this was because it did not meet the standard required for the exemption to apply while, in others, he found that, while the exemption could be appropriately applied, the public interest nevertheless favoured the disclosure of the information. Under freedom of information (FOI) law, many exemptions must be set aside if the disclosure of the information is in the public interest.
The Commissioner also identified significant procedural concerns in the Scottish Government’s handling of this case.
He found, for example, that the Scottish Government had failed to provide all of the information falling within the scope of an Information Notice served on the authority in March 2024 to enable the Commissioner to investigate the case.
Under FOI law the Commissioner can issue legally enforceable Information Notices to secure the provision of information needed to investigate FOI appeals.
During his investigation, the Commissioner subsequently found that there was additional material falling within the scope of the Information Notice which had not, initially, been supplied to his office.
While the Commissioner’s decision finds that this failure to fully comply with the Information Notice was a matter of significant concern, he also accepts that the omission was a genuine oversight, as opposed to an attempt to deliberately obstruct his investigation. As a result, he took the decision in this case not to refer this failure to the Court of Session.
The Commissioner’s decision also raises concerns with the Scottish Government’s interpretation of the request, the changing of its position during his investigation, and its failure to make a full and appropriate case for the application of exemptions to all of the information it proposed to withhold.
Commenting on this case, Scottish Information Commissioner David Hamilton said: “This was a very complex case, and that complexity was compounded by the way in which elements of this case were handled by the Scottish Government.
“When a public body seeks to withhold information under FOI law, it is the responsibility of that body to appropriately make their case to me. It is not for my staff to identify sensitive information on behalf of an organisation, or to make the case for an exemption on its behalf. Authorities must, therefore, ensure that its case is fully and appropriately stated in its entirety.
“It is also particularly disappointing that, had it not been for the diligence of my staff and their forensic analysis of this case, many of the failures that arose may have gone undetected.
“While there is no evidence of impropriety, this nevertheless reflects poorly on the Scottish Government handling of this case, and I trust it will take urgent action to prevent such occurrences happening again.”
The Commissioner’s decision requires the Scottish Government to disclose some information which had been wrongly withheld, and issue a revised response in relation to a small amount of other information, by 12 January 2026.
