David Hamilton: Demand for FOI has been created due to failures elsewhere

There is something oddly satisfying in knowing that when MSPs offered David Hamilton the job of Scottish Information Commissioner – an independent role appointed by the King – they did it via text. Okay, so it’s WhatsApps that the one-time Scottish Police Federation (SPF) chief has become known for of late, but there’s still something rather delicious about a scenario in which members used an informal messaging service to hire a man who has become so professionally interested in members’ use of informal messaging.

To recap: back in November, when he was just a week into the job he accepted via text, Hamilton was forced to make a statement about ministerial WhatsApps when it emerged the Scottish Government hadn’t handed over any pandemic-related communications to the UK Covid-19 Inquiry, which at that point was just weeks away from starting its Scottish diet. Tales were being told of key figures including pandemic-era First Minister Nicola Sturgeon and national clinical director Jason Leitch regularly deleting their messages, and current First Minister Humza Yousaf – health secretary during Covid – went on record to say government guidance had been to routinely purge WhatsApps from official phones.

Hamilton was not amused, and issued an immediate reprimand to those involved. “I started on the Monday and by the Friday I had to deal with that,” he tells me when we meet two days after he issues another government reproach. “That’s when I made the first statement saying it’s clear that WhatsApps are information and need to be saved.”

I don’t know how many government phones have ever been lost or stolen

That second statement, the one issued right before we meet, came after three weeks’ worth of Covid inquiry evidence sessions that revealed the government and its ministers, as well as their officials and advisers, in a less than flattering light. Much was learned about sweary goings-on in the cybersphere – Sturgeon thought former Prime Minister Boris Johnson was a “fucking clown”, Yousaf felt Labour MSP Neil Findlay was an “arsehole” and a “twat” –  while Yousaf was seen confessing to “winging it” and Leitch was shown letting rip about Tory MSP Edward Mountain, who he slated as “rude”.

What interested Hamilton, though, was that those responsible for Scotland’s pandemic response didn’t just delete their WhatsApps from the time but joked about it too, the terms “FOI discoverable” and “that information is not centrally held” popping up with notable flippancy in their exchanges. In announcing an official intervention into ministers’ “use and retention of informal communications” Hamilton said the inquiry had raised “significant practice concerns which warrant further investigation by my office”. “The failure to retain or even record a complete set of the decision-making processes has not only deprived the inquiry of information, but also frustrated the public’s right to request information and generally undermined the spirit of Freedom of Information,” he added. 

Former first minister Nicola Sturgeon leaves the UK Covid-19 Inquiry after giving evidence about deleted WhatsApps | Alamy

When we meet, Hamilton elaborates, saying Sturgeon’s suggestion that she deleted all her messages just in case her official phone got lost or stolen seemed a particularly cynical attempt to excuse bad practice. “I don’t know how many government phones have ever been lost or stolen,” he says with a roll of his eyes, and we joke that I should put in a Freedom of Information request to try to find out.

It is not the easing into the role Hamilton had anticipated when, as he was planning his exit from the SPF, he answered a job advert posted on LinkedIn by the Scottish Parliamentary Corporate Body. His predecessor, former RAF lawyer Daren Fitzhenry, had a decidedly lower profile during his six years in post and, despite gaining a reputation as something of a rabble-rouser during his time at the SPF, Hamilton might reasonably have expected to follow in that tradition. 

Only that’s not really Hamilton’s style. Indeed, in between making those first and second WhatsApp statements, he was busy consolidating his position as a thorn in the government’s side, using X – the informal-communication service formerly known as Twitter – to gloat when his office defeated ministers in a Court of Session case heard in December. In an appeal that included the vital ingredients of Alex Salmond, Nicola Sturgeon and a very public spat, judges didn’t even retire to consider their verdict, telling the court immediately after all the evidence was heard that the government had been wrong to claim it did not hold information a member of the public had reasonably requested under FOI. Hamilton, who admits he had very little to do with the case, taking up the job just a few weeks before the hearing took place, highlighted the brevity of the court’s deliberations when he posted a tweet saying, “21 seconds” and linking to a video of garage group So Solid Crew’s noughties anthem of the same name.  

It was a reasonably mild rebuke considering Hamilton’s long history of holding the government to account during his time at the SPF. Having joined Tayside Police in 1996 after a brief stint doing aid work, Hamilton became secretary of the federation’s local branch in 2011, just as discussions about merging Scotland’s regional forces were beginning to heat up. He remained in that role until 2013 – the year that Police Scotland was created – juggling frontline policing with SPF duties before taking on the full-time position of SPF North Area Committee chair. From there he rose to become chair of the federation itself in 2020, using the position mainly to highlight how severely the service had been impacted by the cost cutting instigated as part of the creation of the single force.

The government’s initial argument was that they didn’t hold the information, now they say they do hold it but they’ve still redacted it; I suspect it will end up in court again because it’s so contentious

“They ripped out twice as much as was in the business case and because of that it put the service on its knees,” he says. “It wasn’t until about 2017-18 that we began to understand the finances of the [new] organisation. When I left it was on track to save £2.2bn over 15 years when it was meant to be £1.1bn. They took so much more because they could.”

Though he believes that, ultimately, the merger was the right thing to do, Hamilton says that while it made large savings for the public purse the other costs associated with doing it were huge.

“I think history will judge Stephen House [the chief constable of Strathclyde Police who went on to become the first chief constable of Police Scotland] in a better way than it has recently,” he says. “The reality was that we had eight forces and a ninth under the Scottish Police Services Authority. All had their own personalities, and all had diverged to such an extent that they needed someone to come in with a hammer, smash it up and put it all back together again. The best way was to do it quickly. 

Working at T in the Park during his policing days (2013)

“The problem was that the people doing that didn’t understand the people or the cultures or communities affected. When Stephen House came in, he said Strathclyde looks like every part of Scotland so we need to extend the Strathclyde model across Scotland. People got a different police service to what they were used to and, more importantly, [officers got a different service] to the one they were used to delivering. They were being asked to do something they didn’t believe in. Someone had to do it and probably Stephen House was the only one who could do it, but there was a lot of cultural tension, and it could have been done a lot, lot better.”

The human cost of the change continued to be felt during Hamilton’s time in office at the SPF and, while he feels one of his biggest wins was helping negotiate a VAT exemption that he says Scottish ministers failed to consider when creating the single force – something that would have cost Police Scotland £25m a year – he used his position to challenge ministers about the impact cuts have had on officer mental health. Though police are adept at dealing with what Hamilton terms “witnessing other people’s trauma” on a daily basis, he says that picking up the slack when other services have been cut, particularly in relation to addiction and mental health, has impacted on officer wellbeing. Speaking before he stood down last year Hamilton said it was a “crisis” for the force.

“You see lots of grisly things as a cop and there are always incidents you remember,” he says, looking back over his own police career. “You remember the baby deaths, you remember helicopter crashes.” He tears up as he recalls attending the scene when a father who had fallen asleep cuddling his baby woke up to find that the child was dead. “It looked like he had smothered the baby,” he says. “In some ways you’re thinking I’m not sure how to deal with that. It was a criminal offence, and he was facing charges, but it turned out the baby had meningitis and was going to die anyway. That case still gets me. It was horrendous.”

A lot of journalists are asking questions, rightly, in terms of holding public bodies to account, but sometimes the questions aren’t great 

Prior to joining the police, and after studying electronic systems and microcomputer engineering at the University of Glasgow, Hamilton had a short-lived career in advertising before embarking on an equally short-lived role as a businessman. “I did an EU-funded course at the Adam Smith Business School, where they placed graduates and I ended up working for a plant-hire company,” he says. “I was given a project to sell scissor lifts. It was a really good opportunity, and I was really well looked after but I realised that travelling the UK at 50 miles per hour with a scissor lift on the back of my car was too much.”

It was while trundling along with the scissor lift behind him that Hamilton heard on his car radio that the UN was looking for drivers to take aid to Bosnia, which at that time was gripped by the war that ensued from the break-up of Yugoslavia, and that led to him getting a job driving for the charity Edinburgh Direct Aid. The destruction he witnessed in Bosnia was difficult to deal with, particularly as two of his colleagues got shot, one – Christine Witcutt, whose daughter, Julie, Hamilton would later meet and marry – fatally. As was the case with the police, it is individual human stories that have stuck with him from that time.

“Some of the things were pretty grim but it was the human emotions that got me more than anything, people telling you how they feel,” he says. “When we were mortared – a guy in front of me got shot in the chest, the guy behind’s truck got blown off the road – it was tough, but bringing refugees back from Scotland at the end of the war is what really sticks with me. I remember going to one house and a guy explaining how his next-door neighbours had been round and they’d had a meal together – they’d entertained them and they’d had a lovely time – then the next day they came back with AK47s. He was taken to a prison camp and his wife and child were taken to an internment camp. It was like a Bosnian version of Glencoe.” 

With the 1958 Green Goddess truck he drove to Kluj in Bosnia in 1996

Aid work has remained a constant in Hamilton’s life ever since and he has served as treasurer of the charity Remembering Srebrenica, which he helped found, for the past decade. As part of that he has taken part in regular delegations to Bosnia, the aim being to use the example of the genocide there as a tool to raise awareness of the dangers posed by racism and intolerance. When she was first minister, Sturgeon went on one of the trips, saying afterwards how she’d been “deeply moved” by the experience and that “we must work to learn the lessons” taught there. With wars raging in Ukraine and Palestine it is clear that lessons haven’t been learned though and, for Hamilton, that means the need to deliver aid goes on.

“Before I finished in the police Ukraine kicked off and I felt I wanted to do something,” he says. “The similarities between Ukraine and Bosnia were striking, particularly Srebrenica. At the very beginning I went to Poland, to the border with Ukraine, and went into the country a little bit. We were feeding folk trying to come across the border. I found it very emotional watching women and children coming across the border. The men were not allowed to cross because they had to stay behind and fight. I remember in Bosnia sitting in my truck thinking where are all the guys. Later we found out they’d all been executed. It brought a lot of memories back. That’s tough.”

Hamilton has always had political links, in part because his job at the SPF demanded it and in part because his younger brother Duncan – a KC at the Scottish bar – was formerly an SNP MSP, becoming the youngest member during the parliament’s first session after gaining a list seat at the age of 25. Though he sat for just one term he remained as an adviser to Salmond afterwards, writing speeches for him during the 2014 independence campaign. The brothers, who were raised in the Manse between Troon and Bearsden, remain close, with Hamilton junior accompanying Hamilton senior to Ukraine last year. 

It is via the Ukraine connection that Hamilton also has ties with the current Scottish Government, having worked closely with health secretary Neil Gray when he previously held the role of minister for Ukrainian refugees. Indeed, while Hamilton has been piling the pressure on the government in his professional capacity, on a personal level he clearly has a good relationship with individual ministers. On the day the government’s Court of Session case is thrown out I bump into Hamilton at an evening reception in parliament. While we’re talking, two cabinet secretaries come over to congratulate him on the result – their defeat – and Gray, who is presenting an award with a Ukrainian theme, borrows a Scotland-Ukraine pin badge Hamilton just happens to have in his pocket.

Such positive relationships, Hamilton believes, are vital, considering how closely his office is likely to have to liaise with the government in the coming months. First, there’s the WhatsApp probe to be getting on with, something that is likely to result in Hamilton telling ministers how they need to behave in future. 

Hamilton's office defeated the Scottish Government at the Court of Session last year | Alamy

Then there is the fallout from the Court of Session case to contend with. In its December ruling the court said the government was wrong to say it did not hold, and so could not release, documents from an investigation that cleared Sturgeon of breaking the ministerial code. Though the government reconsidered the original FOI request in the wake of the judgment, it still refused to release an unredacted version of the relevant report, which focuses on Sturgeon’s handling of sexual assault claims against Salmond, who was ultimately cleared of wrongdoing at a criminal trial in 2020. The original applicant has duly appealed to Hamilton’s office and, given the nature of the information requested and the government’s insistence that it is exempt from release, Hamilton says the matter is likely to run and run. “The government’s initial argument was that they didn’t hold the information, now they say they do hold it but they’ve still redacted it,” he says. “I suspect it will end up in court again because it’s so contentious.”

When the case was originally heard Hamilton made a statement lamenting the fact that “tens of thousands of pounds of precious public funds have been spent on this case”. It is a situation he is keen not to see repeated, something he believes is possible if those requesting information can better frame their questions and those providing it can better channel their responses. If they can build better human relationships, in other words.

“There were 84,000 FOI requests last year and the challenge is that a lot of journalists are asking questions, rightly, in terms of holding public bodies to account, but sometimes the questions aren’t great and that causes conflict between the authority and the journalist,” he says. “We need to get people talking to each other again as the authority has to help people narrow down what it is they’re asking for. Email is fine, but the nuance is often lost. If people could lift the phone it would get rid of a lot of failure demand. Demand for FOI has been created because of a failure elsewhere, in communications. I’d like to see a bit more courteous communication because people’s hackles get up very quickly.”

Ever the relationship-builder, after telling me the answer to many of the problems with FOI would be proactive publication on the part of public bodies, Hamilton gives me a Creme Egg as we say goodbye. It’s small enough not to bother any Bribery Act watchers but big enough for someone who loves chocolate as much as I do to be positively disposed towards him. And so off I go to file that FOI request we discussed. The government responds within the statutory timeframe and confirms that, while the data it holds is incomplete, just one ministerial mobile has been lost in the 25 years since the Scottish Parliament was reconvened. None has been stolen. That confirms it: there’s no reason for ministers to delete any more WhatsApps – and no reason for me to appeal to the information commissioner.