The UK's highest court, the Supreme Court, has been asked to intervene in the ongoing dispute over documents related to an investigation into former Scottish First Minister Nicola Sturgeon's handling of complaints about her predecessor, Alex Salmond.
David Hamilton, Scotland's Information Commissioner, is seeking to have the Supreme Court review a decision by the Court of Session. The Court of Session ruled that certain documents, which the Scottish Government has refused to release citing legal professional privilege, do not need to be disclosed. This marks the first time the Information Commissioner has approached the Supreme Court for a ruling in a case.
The request stems from a prolonged effort by a member of the public using freedom of information laws to obtain evidence submitted to the investigation into Ms. Sturgeon. This investigation was conducted by James Hamilton KC in 2021 and ultimately cleared Ms. Sturgeon of breaching the ministerial code.
The Scottish Government has consistently denied the requests for the documents, asserting legal professional privilege. Following an initial ruling by the Information Commissioner that the documents should be disclosed, the Court of Session overturned this decision. However, Mr. Hamilton confirmed on Thursday his intention to seek leave to appeal to the Supreme Court.
"My decision to seek leave to appeal this ruling to the Supreme Court has not been taken lightly," Mr. Hamilton stated. "It is my view that this ruling runs contrary to the Parliament’s clear intention behind the FOI Act. There are significant implications and risks placed on the public’s right to access information because of this ruling – it is therefore clearly in the public interest that I seek to challenge this at the Supreme Court."
While some information was provided by the Scottish Government in response to the original request, the government redacted other documents, claiming privilege. The Court of Session's decision upheld this claim, ruling disclosure was not required.
Jackie Baillie, acting leader of Scottish Labour, commented on the situation, stating, "Too often the SNP operates under a cloak of secrecy. Freedom of Information laws provide much-needed accountability in that context and the FOI Commissioner has been a powerful champion for transparency in public life. This legal challenge could have significant implications for the disclosure of information. However, it should not take lengthy legal disputes to get answers from the SNP government. We need to see an end to the culture of cover-up that the SNP has created and a renewed commitment to openness and integrity in government."
The Information Commissioner further elaborated that the Court of Session's ruling grants "legal professional privileged information a status beyond that afforded by the FOI Act." He believes the ruling "steps beyond Parliament’s clear intention behind the exemption in the FOI Act and erodes the importance of public interest considerations." Mr. Hamilton also expressed concern that the ruling "substantially limits the scope for the balance of the public interest weighing in favour of disclosure for this exemption" and could impact the application of such balancing exercises in relation to other exemptions.
A spokesperson for the Scottish Government indicated that it would be inappropriate to comment on the matter due to ongoing litigation.