Scottish Government ‘wrongly withheld’ information from Sturgeon breach probe

The Scottish Government wrongly withheld information that was part of an investigation into whether former first minister Nicola Sturgeon breached the ministerial code, the Information Commissioner has ruled.

The decision by Scottish Information Commissioner David Hamilton now requires the Government to disclose some of the written evidence used in that investigation.

Mr Hamilton also criticised the Government over its handling of the case, saying it was only through the “diligence” of his staff that “failures” were uncovered – branding this “particularly disappointing”.

He added that “while there is no evidence of impropriety, this nevertheless reflects poorly on the Scottish Government handling of this case”.

Mr Hamilton went on to advise ministers to “take urgent action to prevent such occurrences happening again”.

His comments came as a new ruling was published in a long-running request for information from the investigation into whether Ms Sturgeon breached the ministerial code in dealings with her predecessor the late Alex Salmond over harassment allegations.

In March 2021, independent adviser James Hamilton KC cleared the then first minster of this but a freedom of information (FoI) request was then made to the Scottish Government for all written evidence used in the investigation.

The Government had originally insisted that as Mr Hamilton was an independent adviser on the ministerial code he was not subject to freedom of information legislation.

However, the Information Commissioner intervened, ordering the Government to look at the case again.

While ministers challenged this decision in the Court of Session, their appeal was refused.

In the wake of this, some information was supplied in January 2024 but the Government withheld further details, citing various exemptions under FoI laws.

In a new ruling published this week the Information Commissioner found the Scottish Government had failed to accurately interpret the scope of the request for information.

He also criticised the Government for “failing to disclose some information which fell within the scope of the applicant’s request and which it did not specifically identify as being exempt from disclosure”.

Mr Hamilton added the Government had been “wrongly withholding some information under the exemptions”.

He has not ordered the Scottish Government to disclose the information that was wrongly withheld and to consider again if the information it had wrongly considered to be outside of the scope of the application should also be revealed.

Mr Hamilton said afterwards it had been a “very complex case”, adding that the “complexity was compounded by the way in which elements of this case were handled by the Scottish Government”

In his ruling, he also stressed he was “acutely aware of the sensitivity of the subject matter of the request and, consequently, some of the withheld information”.

The commissioner’s report also said it was a “significant concern” that the Scottish Government had failed to comply with an information notice he had issued, requiring it to supply information that had previously been withheld.

The report pointed out complying with such a notice is a “binding statutory requirement”, adding the Information Commissioner has the right to raise the matter with the Court of Session should a body fail to comply.

However, it was accepted the failure to provide this “was a genuine (if inexcusable) oversight” – with the report saying on this occasion the commissioner would not raise the matter with the Court of Session.

The report also made clear that where the commissioner “considers the circumstances merit it, he will not hesitate to do so in future”.

In the wake of the ruling, independent MSP Fergus Ewing called on First Minister John Swinney to “publish all the documents that show the truth about the Sturgeon inquiry and the Salmond hounding by senior civil servants and others”.

The former SNP MSP added that the Government has “spent hundreds of thousands of pounds of taxpayers’ money to prevent publication of documents relating to both the Sturgeon investigation and Salmond inquiry”.

He said: “Now the FoI Commissioner in a scathing finding has found that the Scottish Government have broken the law in failing to provide the commissioner with the documents he sought by legal order.

“This is an utterly devastating finding which destroys any shred of credibility that the First Minister has when he says he is committed to transparency and openness in Government.”