Ministers criticised over release of legal advice

The Scottish government has been criticised for fighting a Freedom of Information Request (FOI) related to Nicola Sturgeon's conduct during the Alex Salmond inquiry.

Scottish Information Commissioner David Hamilton said ministers continued with court action against his office, despite "limited prospects of success and the associated impact on public funds".

The watchdog also criticised an alleged "misrepresentation" of its position to the media and the quality of submissions from ministers.

First Minister John Swinney has said the government acted rationally and in line with legal advice.

The commissioner's criticism follows a convoluted chain of events which arose after an inquiry by the independent adviser on the ministerial code - Irish lawyer James Hamilton.

In 2021, he considered whether Sturgeon had misled MSPs about when she met Alex Salmond's chief of staff in the aftermath of harassment allegations made against Salmond.

Salmond had been cleared of sexual assault charges at a criminal trial.

The lawyer cleared Sturgeon of breaching the ministerial code, but expressed frustration that his report had been heavily redacted.

A member of the public later submitted an FOI to ask the Scottish government to publish all the evidence gathered in the inquiry.

The government rejected the request because it said it did not hold that information, sparking an appeal to the information commissioner.

The commissioner ruled that the government did indeed hold the information.

In a highly unusual move, the government then appealed that decision in the Court of Session in December 2023, and lost.

The legal action reportedly cost the information commissioner's office almost £30,000, which the government has to repay.

A member of the public then submitted an FOI asking for the legal advice the government had been given relating to its decision to appeal the ruling.

The government refused that request, resulting in another appeal to the information commissioner.

Ministers argued it was not in the public interest to release the information, which they said was subject to legal professional privilege.

The commissioner rejected that argument and gave ministers a deadline of 26 October to release the requested information.

The government did so, but only at what the commissioner called "the 11th hour".

Mr Hamilton, who oversees FOI law in Scotland, said he had now reviewed the information and found it was "disappointing" that ministers continued with the case despite clear legal advice that they were "more likely than not" to lose.

He also expressed frustration at the amount of time ministers took to release the information.

Mr Hamilton said: "I was deeply disappointed in the tone of the media statement accompanying the disclosure, which, in my view, misrepresented the facts."

He said the statement suggested ministers had a "stateable case", but that this was "not a true or transparent reflection of advice received".

The commissioner added: "Ministers' chances of success diminished considerably over time and attempts to present this otherwise are not what I would expect from a public authority."

He also pointed to "factual discrepancies" in the original submissions to his office.

"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," Mr Hamilton said.

He added that the case was "out of character" with the rest of the government's FOI dealings.

The legal advice revealed KC James Mure had warned ministers that "on balance, the court is more likely than not to refuse the appeal" if judges decided to take a "broad approach".

The documents also show that the director of the government's internal legal directorate, Ruaraidh Macniven, felt that "in his view this perhaps isn't a case where ministers should appeal".

However, Lord Advocate Dorothy Bain, the government's senior legal adviser, "indicated that she thought the decision [of the Information Commissioner] should be tested".

In a statement to parliament three days after the legal advice was released, Swinney said the decision to go to court had been "perfectly rational" based on the advice minister received.

He said claims that the government went to court against legal advice had been "disproved".

Scottish Conservative finance spokesperson Craig Hoy said: "This reeks of SNP secrecy and cover-up. Taxpayers whose money has been wasted on this cynical action deserve full transparency."