The James Hamilton report - evidence
On 22 March 2021, a report by James Hamilton on the First Minister’s self-referral under the Scottish Ministerial Code was published.
On 5 April 2021, a FOI request was made to the Scottish Government for all written evidence submitted to Mr James Hamilton’s investigation into the First Minister.
The Scottish Government responded to this request, claiming that the information was not held, submitting that as an independent adviser on the Ministerial Code, Mr Hamilton was not subject to the Freedom of Information (Scotland) Act 2002 (FOISA). This was appealed to the Commissioner, who found that this information was held by the Scottish Government and required a new response to this request.
The Scottish Government appealed the Commissioner’s decision to the Court of Session which found in the Commissioner’s favour. The Scottish Government was therefore required to comply with the Commissioner’s decision.
The Scottish Government complied with the decision on 23 January 2024. The Scottish Government supplied the requester with links to information already available but withheld the remaining information on a number of grounds.
This request for the 'evidence’ collated during the James Hamilton investigation remains under live appeal with the Commissioner.
For clarity, the Commissioner considered a request for an unredacted version of the James Hamilton report in 2022. The Commissioner found that the unredacted report was correctly withheld (given court orders were in place).
The Legal Advice
Following the Court of Session’s decision, a FOI request was made for the legal advice given to the Scottish Government relating to it appealing the Commissioner’s decision.
The Scottish Government refused this request on the basis that the information was subject to legal professional privilege. This was appealed to the Commissioner.
On 9 September 2024, the Commissioner issued Decision 193/2024. The decision found that the public interest outweighed the application of the exemption and required the Scottish Government to disclose the legal advice.
The Scottish Government are required to disclose the legal advice, subject to appropriate redaction, by 26 October 2024.
Update
Scottish Information Commissioner requires disclosure of Scottish Government communications and instructs further searches including business and personal WhatsApp accounts.
18 March 2025
The Scottish Information Commissioner has this week issued Decision 065/2025 which requires the Scottish Government to disclose all communications relating to an earlier decision of the Commissioner (Decision 004/2023) and to conduct further searches for information that it holds.
In that earlier decision, the Commissioner ruled that information relating to James Hamilton’s investigation into former First Minister Nicola Sturgeon under the Ministerial Code was held by the Scottish Government and should therefore be considered by it when responding to freedom of information (FOI) requests. This decision was appealed to the Court of Session in March 2023, with the Court swiftly finding in favour of the Commissioner in December 2023.
Following the Court’s ruling, a member of the public requested copies of legal advice received by the Scottish Government relating to its decision to lodge that appeal. This was refused by the Scottish Government but, on appeal, the Commissioner required the legal advice to be released .
In this latest decision , the Commissioner considered an additional request for all communications relating to the Scottish Government’s appeal to the Court of Session. Once again the Scottish Government chose not to supply this information to the Commissioner. The Commissioner’s decision did not consider the legal advice already disclosed but instead the remaining information - which the Scottish Government described as “standard official level correspondence of a type expected when preparing for litigation”. The Scottish Government advised this was not in itself legal advice but that it nevertheless retained legal privilege. The Commissioner accepted that the information would likely be privileged but that, in all the circumstances, the public interest over-ruled the exemption and required the material to be released.
Furthermore, the Commissioner was not persuaded that the searches undertaken for communications were neither broad enough nor comprehensive enough. The lack of WhatsApp messages (in particular) was notable and he instructed further searches of the business and personal phones (and associated cloud accounts) of a number of senior individuals involved in the decision making. He also found that the previous searches covered an unduly narrow timeframe and required the Scottish Government to revisit this.
The Commissioner’s decision requires compliance by 2 May 2025.
Should either the applicant or the public authority wish to appeal against the Commissioner’s decision, they may appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of the decision (18 March 2025).
Further information
The current decision:
The previous decisions:
- Read the full text of the Commissioner’s original decision (Decision 004/2023 ).
This decision found that information relating to James Hamilton’s investigation into Nicola Sturgeon under the Ministerial Code was held by the Scottish Government for the purposes of FOI law. - Read the full text of the Commissioner’s decision (Decision 193/2024 ) requiring the legal advice relating to the Appeal challenge of that original decision.
This decision issued 9 September 2024 required Scottish Government to publish their legal advice in relation to the unsuccessful appeal against Decision 004/2023.
Other information:
- The Commissioner is currently considering three other ongoing cases where the requester has sought information relating to James Hamilton’s investigation into Nicola Sturgeon under the Ministerial Code from the Scottish Government. The Commissioner’s decisions on these cases will be published on the Commissioner's website in due course.
