Government rebuked over Sturgeon probe documents

There were "factual discrepancies" by ministers in the handling of the release of documents relating to a probe into whether or not Nicola Sturgeon broke the ministerial code, the Scottish Information Commissioner has said.

A Scottish Government bid to withhold documents relating to advice from legal experts was thrown out by the Court of Session in December 2023.

The case cost the public purse tens of thousands of pounds.

Ministers pursued the appeal despite legal advisers suggesting it was likely to fail.

Now information commissioner David Hamilton has issued a rebuke to ministers, saying the SNP administration caused delay to the process and failed to withdraw its appeal from the Court of Session "once it was clear there were limited prospects of success".

He said the handling of the case was "out of character" with the rest of the administration's performance.

In a letter to John Paul Marks, the country's most senior civil servant, Hamilton said he wanted to express his "disappointment in the way that elements of this case have been handled".

He said: "From a review of the information disclosed it is evident that, in relation to the accessibility of information, there were some factual discrepancies between the original submissions received by my office and the position as later ascertained by the ministers. Had more care been taken in compiling arguments when my office sought submissions, a failed appeal to the Court of Session, delay to the requester and the significant impact on the public purse may have been avoided."

The case dates back to April 2021, when a member of the public submitted a Freedom of Information (FOI) request seeking evidence held in relation to the James Hamilton inquiry.

Sturgeon referred herself to the independent adviser on the ministerial code in relation to claims that she had misled parliament on the matter. The probe cleared her of having breached the ministerial code.

This FOI request was initially refused by ministers who claimed it did not “hold” it because Hamilton was acting independently of government.

The information commissioner argued that definition was too narrow, given the information was held within Scottish Government document management systems (albeit with restricted access), and instructed ministers to release it.

Ministers appealed the commissioner’s ruling but this was thrown out by the Court of Session in December last year. 

A second freedom of information request was made for the legal advice relating to that appeal. This was also first refused by ministers before the information commissioner ordered that it be released.

A 101-page file of emails, notes and other information was then released in October of this year. It revealed that while the government was told its appeal had a "reasonable prospect of success", those chances were later "downgraded".

First Minister John Swinney was pressed to open a judge-led inquiry into the row, but refused this.

Now the commissioner has said it is "clearly disappointing" that ministers pressed on with the appeal despite the legal advice about its chance of success. 

He 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."

He went on: "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."

Hamilton continued: "From a review of the information disclosed it is evident that, in relation to the accessibility of information, there were some factual discrepancies between the original submissions received by my office and the position as later ascertained by the ministers. Had more care been taken in compiling arguments when my office sought submissions, a failed appeal to the Court of Session, delay to the requester and the significant impact on the public purse may have been avoided. 

"Despite the concerns that have been highlighted in the handling of this case, it would be remiss of me not to note that the way in which this and some related cases are handled is out of character with the rest of the Scottish Governments FOI performance. The Scottish Government is performing remarkably well from a quantitative perspective, and I hope that next month our quality review will take me to a point where I can close my long running intervention."

The Scottish Government commented: "The substantive points in the commissioner’s letter were fully addressed in a statement to the Scottish Parliament on 29 October 2024."

However, Scottish Labour's Martin Whitfield said "the SNP cannot ignore" the "extraordinary intervention" from the commissioner. He commented: "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."

Conservative MSP Craig Hoy said: "The SNP had to be dragged kicking and screaming into releasing this legal advice and serious questions remain for them to answer. 

 "It is hugely concerning that the commissioner believes they misrepresented the facts in this case and that there was a slapdash approach to submissions. This reeks of SNP secrecy and cover-up. Taxpayers whose money has been wasted on this cynical action deserve full transparency."