Scottish Government releases legal advice on court battle with FOI watchdog

The Scottish Government was told it had a “reasonable prospect of success” in its legal battle with the country’s transparency watchdog, documents released on Saturday have shown.

Ministers took the Scottish Information Commissioner to court after they were ordered to release evidence given to an inquiry into Nicola Sturgeon.

In April 2021, a freedom of information (FOI) request was made to obtain all the evidence submitted to the James Hamilton probe into whether Ms Sturgeon breached the ministerial code when she was first minister.

Ms Sturgeon had referred herself to Mr Hamilton – the independent adviser on the ministerial code – in response to allegations she had misled Holyrood in relation to the inquiry into the botched investigation of harassment complaints against her predecessor Alex Salmond.

The Government argued it did not hold the information, claiming it was in a restricted part of its information management system as a result of Mr Hamilton’s inquiry.

Eventually, the Information Commissioner ordered ministers to divulge the information, with the Court of Session subsequently rejecting a Government appeal against the decision.

Another freedom of information request was then submitted for the legal advice relating to the decision to appeal.

Through the same process, the Information Commissioner ordered the Scottish Government to publish the advice, despite the ministerial code saying such a move is not normally taken.

The Scottish Government released the information on Saturday morning in a 101-page document of emails and legal opinions relating to the decision.

It showed that lawyers thought the argument by ministers that they did not “hold” the information was “weak”.

The document stated: “Counsel considers the prospects of success at appeal to be reasonable but that there are significant presentational risks for ministers.”

It also said that a second opinion “downgraded” the likelihood of success, but the Lord Advocate said the option to appeal remained “open” to ministers.

The Scottish Government said the document showed that it took the decision to appeal over the Information Commissioner’s ruling based on “appropriate analysis of legal considerations”.

A spokesperson 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 judgement recognised as addressing a ‘sharp and important question of statutory interpretation’.

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

Scottish Conservative justice spokesman Liam Kerr MSP said: “This is a typical case of the SNP refusing to listen to the warnings of others as they believe they know best.

“Wasting public money on an appeal likely to fail demonstrates utter contempt for our taxpayers from the SNP.”